TMI Blog2013 (6) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of receipt of this order whichever is later. - CEXA No. 14 of 2011 with CEXA No. 9 of 2010 - - - Dated:- 5-7-2012 - Kalyan Jyoti Sengupta and Asim Kumar Mondal, JJ. Smt. Sarkar, Advocate, for the Appellant. Shri Khaitan, Sr. Advocate, for the Respondent. ORDER The Court : Both the appeals are taken up for hearing analogously in terms of our previous order as in both the appeals the matter and controversy are same, the point involved as it was formulated earlier is as follows : Whether without any final assessment of duty in the present case the question of any revenue of excess amount duty would arise at all? 2. The short fact leading to preferring this appeal is as follows : The assessee/respondent manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed. 4. Smt. Sarkar, learned Advocate appearing for the appellant, submits that Central Excise Act and the Rules framed thereunder do not envisage for refund of the duty payable in case of a provisional assessment, and this can only be done when the final assessment order is passed. She has also drawn our attention to the provision of Section 11B of the said Act. The position was different when the Supreme Court decided the case of Mafatlal Industries Ltd., reported in 1997 (89) E.L.T. 247 (S.C.). However, in order to get over the situation arising under the said Supreme Court decision by Notification No. 45/99-C.E. (N.T.), dated 25th June, 1999, an amendment has been made in sub-rule (5) of Rule 9B by adding a proviso thereto. The e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not quantified the amount of refund nor has given any direction for payment of the same, but the effect of the order is a declaration given in favour of Mr. Khaitan s client, as it is recorded that the appellant shall be entitled for the refund in question. 9. We find force in the submission of Smt. Sarkar. The development took place in post-Mafatlal s case (supra) has to be taken note of. The proviso in sub-rule (5) of Rule 9B has been added. The said proviso reads as follows : [Provided that, if an assessee is entitled to a refund, such refund shall not be made to him except in accordance with the procedure established under sub-section (2) of section 11B of the Act.] [ [6] Notwithstanding the provisions of self-assessment in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer to conclude final assessment within a period of two months from the date of communication of this order upon giving hearing to the respondent-assessee. 15. In the event of failure of final assessment within the time as above, the provisional assessment shall be deemed to be final assessment and in that case, application for refund will be entertained and examined and amount, if any, refundable shall be quantified immediately thereafter and this exercise must be completed within a week from the date of expiry of two months. Accordingly, the application filed by Mr. Khaitan s client is restored to its file. This should be processed within fortnight after the final order of assessment or after expiry of two months from the date of rece ..... X X X X Extracts X X X X X X X X Extracts X X X X
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