TMI Blog2010 (3) TMI 406X X X X Extracts X X X X X X X X Extracts X X X X ..... f finalization is within time. Commissioner’s finding of refund being time barred not correct. - E/3260/2007-SM - 335/2010-SM(BR)(PB), - Dated:- 16-3-2010 - Shri Rakesh Kumar, Member (T) Shri Z.U. Alvi, Advocate, for the Appellant. <?xml:namespace prefix = st2 /> Shri I. Baig, SDR, for the Respondent. [Order]. - The facts giving rise to this appeal are in brief are as under :- 1.1 The appellant are a Central Govt. Public Sector Undertaking engaged in the manufacture of heavy and sophisticated electrical mechanical equipment for generation and transmission of power chargeable to duty under Chapter 84 and 85 of the Central Excise Tariff. The appellant in the course of their regular business operations, rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation amount, while they had received price escalation amount only once against the invoices No. 30175 and 30176, dated 19-6-99, and accordingly on 24-5-2002 they filed a refund claim amounting to Rs. 6,64,488/- (Rs. 3,43,094/- + Rs. 3,23,394) paid under the price variation invoices No. 30103 and 30104 both dated 26/27-5-99 under which though the duty had been debited but the same had never been issued. The Jurisdictional Asstt. Commissioner with whom the refund claim had been filed, vide his letter dated 29-8-2002 returned the refund claim on the ground that since the relevant RT 12 returns had been being assessed provisionally, the claim was pre-mature and that the refund claim should be presented before the competent authority at the ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amined by the Original Adjudicating Authority, he is of the opinion that the Departmental Officers as well as appellate authorities are bound by the Section 11B of the Act and if the claim for refund is made beyond the time limit prescribed under the said section, the refund cannot be given as it would be clearly time barred. It is against this order of the Commissioner (Appeals) that the present appeal has been filed. Since the appellant is a Central Govt. Undertaking the necessary clearance from the Committee of Disputes of Govt. of India, Cabinet Secretariate for filing appeal against the Commissioner (Appeals) order was also produced. 2. Heard both sides. 2.1 Shri Z.U. Alvi, Advocate, ld. Counsel for the appellant pleaded that the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken by the NVDA is not relevant as NVDA not being a manufacturer of excisable goods or provider of taxable services was not in a position to take Cenvat credit, that the appellant had produced the certificate of non-passing of incidence to NVDA of second duty payment and hence there was no question of unjust enrichment, that since as intimated by the Asstt. Commissioner in his letter dated 29-8-02 the assessments in RT 12 returns for relevant period was provisional, there is no question of the refund claim being hit by the bar of limitation as the refund claim was filed within a period of one year from the date of finalisation of the assessment and that in view of this, the impugned order is not correct. 2.2 Shri I. Baig, the ld. SDR d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of the price escalation on which the same amount of duty which was paid. There is no dispute about the double payment of duty on the same amount of price escalation and there is also no dispute that the payment alongwith the duty was received by the appellant only from the second set of invoices. I also take note of the fact when the refund claim of the duty of Rs. 6,64,488/- paid under the invoice Nos. 30103 and 30104 dated 26/27-5-99 was submitted to the Asstt. Commissioner, the Asstt. Commissioner vide his letter dated 29-8-02 advised the appellant that the claim is premature and should be submitted after finalisation of the provisional assessments for the relevant period, as the claim pertains to RT 12 returns which have been pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of one year from the date of finalisation of the provisional assessment, the refund claim is within time and Commissioner (Appeals)'s finding that the same is time barred is not correct. The second objection of the Department that the necessary intimation regarding cancellation of the invoices No. 30103 and 30104 dated 26/27-5-99 was not submitted to the Jurisdictional Range Supdt., is also not relevant, as duty had been paid under these invoices and the question of intimation to the Range Officer would have arisen only if the duty had not been paid. Since the Deptt. does not dispute that the payment from NVDA has been collected only once and not twice and since NVDA is not a manufacturer or provider of taxable service, there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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