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2023 (10) TMI 731 - AT - Central ExciseRefund of excise duty paid erroneously - rejection of refund claim holding that there was no requirement of payment of duty in view of specific bar provided under Section 5A(1A) of Central Excise Act, 1944 - HELD THAT:- It is not in dispute that the appellant supplied the goods to a project of BHEL, supply of which enjoyed exemption under Notification No. 06/2006-CE dated 01.03.2006. Further, it is not in dispute that the appellant erroneously paid duty of exercise amounting to Rs. 55,02,800/- in respect of goods supplied to BHEL and did not charge the exercise duty from its customers. When the appellant realized that he has paid excess duty thereafter he filed the refund application under Section 11B of the Central Excise Act. Refund was rejected mainly on the ground that he has not challenged the self-assessment in appeal and without challenging the self-assessment refund claim is not maintainable. It is also not in dispute that the refund claim has been filed within the period of limitation as prescribed under the provision of Section 11B. The revenue has raised the objection that in view of the judgment of the Hon’ble Apex Court in the case of COLLECTOR OF CENTRAL EXCISE, KANPUR VERSUS FLOCK (INDIA) PVT. LTD. [2000 (8) TMI 88 - SUPREME COURT] unless the self-assessment is altered by way of an appeal, refund claim is not maintainable - On going through the judgment of the Hon’ble Apex Court in the case of Flock India Pvt. Ltd., it is found that in that case there was a classification dispute and the classification filed by the assessee was changed by the Assistant Commissioner of Central Excise leading to levy of higher duty of exercise. It is found that even the case of Hon’ble Apex Court of ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV [2019 (9) TMI 802 - SUPREME COURT] is also not applicable in the facts of the present case because the said case was under provision of Customs Act, 1962 where the provisions are different from that of Excise Act and service tax. The impugned order is not sustainable in law and the same is set aside - Appeal allowed.
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