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TMI Blog2014 (8) TMI 977X X X X Extracts X X X X X X X X Extracts X X X X ..... t to M/s. Bokaro Steel Plant, had been carried out by raising invoices on the clearance quantity, @ Rs. 80/- per litre during the period, 13-12-2001 to 30-4-2002. Since the price was revised finally at Rs. 62.79 per litre, the excess duty thus paid at the time of clearance of the said goods, applying the rate @ Rs. 80/- per litre, had been claimed as refund by the Appellant through a refund claim on 11-12-2002. Since there was some deficiency in the refund claim, the jurisdictional Assistant Commissioner directed the Appellant to remove the deficiency by addressing a letter dated 5-3-2003. Pursuant to the said letter of the Assistant Commissioner, the Appellant had furnished documents and further clarification to the issues raised in relation to the said refund claim on 12-6-2003. The Adjudicating Authority had rejected their refund claim on various counts. Aggrieved by the said Order, the Appellant filed an appeal before the ld. Commissioner (Appeals) who had upheld the Order of the lower authority and rejected the appeal filed by the Appellant. Hence, the present Appeal. 3. Ld. Consultant appearing for the Appellant argued that pursuant to the finalization of provisional Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re excess amount of duty has been erroneously paid. For the purpose of computation of the period of limitation, in filing claim for refund of duty, the period of provisional assessment becomes relevant. In support, he has referred to the judgment of the Bombay High Court in the case of CCE, Nagpur v. Oriental Explosives Pvt. Ltd. - 2008 (222) E.L.T. 205 (Bom.) and the decision of the Tribunal in the case of Telephone Cables Ltd. v. CCE, Chandigarh - 2003 (154) E.L.T. 237 (Tri.-Del.) 4. Per contra, ld. AR for the Revenue submits that the ld. Commissioner (Appeals) has rightly concluded that the present demand is barred by limitation, as the Appellant had initially filed an incomplete refund claim, but along with all documents, the refund claim completed in all respects was filed only on 12-6-2003. Therefore, the first refund claim cannot be accepted as a refund claim under Section 11B of the CEA, 1944. In support, he refers to the decision of the Karnataka High Court in the case of Sudhir Papers Ltd. v. CCE, Bangalore-I - 2012 (276) E.L.T. 304 (Kar.). Further, ld. AR for the Revenue submits that the issuance of credit notes to regularize the amount already received, cannot com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise or Deputy Commissioner of Central Excise) is satisfied that the whole or any part of the duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund : ......................................................................................... (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). ......................................................................................... Explanation. - For the purposes of this section, - (A) "refund" includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (B) "relevant date" means, - (a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e period of one year from the relevant date, we find that the Applicant had filed the refund claim initially on 11-12-2002, for an amount of Rs. 9,06,932/- involving the period, 13-2-2001 to 30-4-2002. The said refund claim was subsequently returned to the Appellant for removal of defects by the Assistant Commissioner on 5-3-2003. Accordingly, the defects were removed and the refund claim was again submitted on 12-6-2003. It is the contention of the Appellant that the date of refund claim be considered as 11th December, 2002, whereas the Revenue submits that it was complete in all respects, when filed on 12th June, 2003, hence that should be taken as the filing date. In rejecting the refund claim as time-barred, both the authorities below had observed that the date on which refund claim was filed only after removal of defects, be considered as the date of filing of the refund claim. We do not find force in the observation/reasoning of the Department, inasmuch as the refund of duty was sought, after having been paid in excess at the time of removal/clearance of the goods from the factory and the same was filed on 11th Dec., 2012. The cause of action arose on the date of payment of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessees from claiming refund. Section 11B of the Central Excise Act, 1944 also provides for refund of duty in any other case. Moreover, the fact that the price of the goods supplied by the assessees to M/s. Coal India Limited was fixed by valid agreement entered into between the assessees and M/s. Coal India Limited after 31-3-2001 has not been disputed by the revenue." 5.3 We find that the situation in the present case is more or less similar to the one referred to, in the case of Oriental Explosives (P) Ltd.'s case (supra). Their Lordships had observed that even though the assessment was not provisional, that by itself would not disentitle the assessee from claiming the refund. Following the said principle, we are of the considered opinion that merely because the assessment is not provisional, it would not deprive the Appellant in claiming the refund claim of the excess paid earlier. Also, in our view the relevance of assessment either provisional or otherwise comes into play only for the purpose of computation of the time-limit from the relevant date, in filing the refund claim under Section 11B of CEA, 1944. It has nothing to do with the eligibility of refund. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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