TMI Blog2006 (12) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The appellant was engaged in the manufacture of electronic goods (computers and parts thereof) and on 11-3-2003, it filed a refund claim of Rs. 5,84,606/-. Earlier, it had filed eight refund claims between 30-9-1992 and 29-6-1994 for an amount of Rs. 85,84,474/- seeking deductions in respect of post manufacturing expenses under various heads which is said to be including the aforesaid amount of Rs. 5,85,606/-. The Assistant Commissioner by order dated 2-6-1996 rejected those claims for deductions and found the assessee liable to pay a sum of Rs. 1,44,417/- while finalizing the provisional assessment. In paragraph 20 of that order, it was held that : ...........on finalization of party s assessment, it is found that the party has paid C.E. duty amounting to Rs. 1,44,417/- short for the years 92-93 and 93-94 for which period the party had filed the refunds claim for their safety/precautionary measures . In the appeal, preferred against that order by the assessee, the Commissioner (Appeals) on 22-5-2001, set aside a part of the order pertaining to the rejection of the claim for deductions of installation and training charges from the assessable value and the adjudicating author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecisions in support of his submissions :- (a) The decision of Hon ble the Supreme Court in Mafatlal Industries Ltd. v. Union of India, reported in 1997 (89) E.L.T. 247, was cited to point out from paragraph 95 of the judgment [paragraph 104 of the report of the said case appearing in 1997 (5) SCC 536] that, the Supreme Court has in no uncertain terms held that : any recoveries or refunds consequent upon the adjustment under sub-rule (5) of Rule 9B will not be governed by Section 11A or Section 11B, as the case may be . These observations were made while considering the provisions of Rule 9B, which provide for provisional assessment in situations specified in clauses (a), (b) and (c) of sub-rule (1). (b) The decision of Hon ble the Supreme Court in Commissioner of Central Excise, Calcutta v. Suntrack Electronics (P) Ltd., [TVS Suzuki Ltd.] reported in 2003 (156) E.L.T. 161 (S.C.), was cited to point out that the Supreme Court following the decision of the nine Member Bench in Mafatlal Industries Ltd. and after noticing that the amendment vide Notification No. 45/99-C.E. (N.T.) dated 25-6-99 was made in sub-rule (5) of Rule 9B by adding a proviso in order to get over the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Tribunal had, following the ratio of the decision in Mafatlal Industries Ltd., held in paragraph 3 of the order that refund in that case was a consequence of finalization of the provisional assessment, and allowed the appeal. It is stated that a Departmental appeal preferred against this order was dismissed by Hon ble the Supreme Court, reported in 2003 (157) E.L.T. A143. The Supreme Court held that the order of the Tribunal was supported by judgment of the Supreme Court in Sinkhai Synthetics Chemicals Pvt. Ltd. (supra). (f) The decision of the Tribunal in Oriental Exports v. Commissioner, reported in 2001(127) E.L.T. 578, was cited for the proposition that the bar of unjust enrichment was not applicable to refund and recoveries consequent to finalization of provisional assessment. In the process, the Tribunal followed the ratio of the decision of the Supreme Court in Mafatlal Industries Ltd. (supra). It was pointed out that while dismissing the appeal against the decision in Oriental Exports, reported in 2006 (200) E.L.T. A138, the Supreme Court held that the point in issue was squarely covered by three Judge Bench decision in Allied Photographics case (supra). 4. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atisfied that the whole or any part of the duty of excise paid by the applicant is refundable. That order ordinarily would include a direction to credit the amount to the Fund as defined in Section 2(ee) of the Act, unless the matter is governed by the proviso to sub-section (2) of Section 11B, in which case instead of the amount being credited to the fund it is required to be paid to the applicant. Sub-section (3) of Section 11B has an overriding effect in the following terms :- 11B(3) - Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2). [emphasis added] 6. It would appear from the wordings of sub-section (3) of Section 11B which are that, unambiguous that, no refund shall be made except as provided in sub-section (2) of Section 11B. Sub-section (3) of Section 11B overrides the rules made under the said Act which would obviously include Rule 9B in its entirety, i.e., including even sub-rule (5) of Rule 9B. This would se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to the provisional assessment even after the finalisation thereof. The point in issue in the present case is, thus, squarely covered by the three-Judge Bench decision in Allied Photographics case [2004 (166) E.L.T. 3 (S.C.) = 2004 (4) SCC 34]. In view of this, the appeals are dismissed and the order passed by the Tribunal is affirmed. No costs. [emphasis added] 8. In view of the categorical statement of law as reflected in the aforesaid decisions of Hon ble the Supreme in Allied Photographics Ltd. (supra) and Oriental Exports v. Commissioner in the affirming order, there is absolutely no scope for the revenue to try to rely on the provisions of sub-section (3) of Section 11B, because the Hon ble Supreme Court obviously would have taken into consideration the same provision. 9. For the foregoing reasons, the portion of the impugned order to the extent that it directs the adjudicating authority to consider the appellant s refund claim in the light of Section 11B(2), is hereby set aside and the adjudicating authority is directed to act as per the other directions contained in the orders of the Commissioner (Appeals). The appeal is accordingly allowed. [Dictated and pron ..... X X X X Extracts X X X X X X X X Extracts X X X X
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