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M/s. Mahavir Spinning Mills Ltd. Versus Commissioner of Central Excise, Chandigarh

2016 (1) TMI 289 - CESTAT NEW DELHI

Claim of interest on delayed refund - finalization of provisional assessment - period of limitation - appellant filed the refund claim on 11.8.1998 “without prejudice” basis under Rule 9B(5) of the Central Excise Rules, 1944 on the ground that appellant is not required to file refund claim under Rule 9B(5) of the Rules as per various judicial pronouncements. - Held that:- Admittedly, in this case, the order dated 7.7.98 of finalization of provisional assessment was challenged by the Revenue befo .....

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hree months from the date i.e. 30.5.2001 when the claim of refund has attained finality till the refund claim was given to the appellant. - Decided in favor of assessee. - Excise Appeal No. 400 of 2005 - FINAL ORDER NO. 52806 /2015-EX(DB) - Dated:- 3-9-2015 - Shri Ashok Jindal, Member (Judicial) And Mr. B Ravichandran, Member (Technical) For the Petitioner : Shri Balbir Singh, Sr. Advocate and Shri Rupender Singh, Advocate For the Respondent : Shri R K Grover, DR ORDER Per Ashok Jindal: The appe .....

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Central Excise Act, 1944 on 31.7.1998. Consequent to that, appellant filed the refund claim on 11.8.1998 without prejudice basis under Rule 9B(5) of the Central Excise Rules, 1944 on the ground that appellant is not required to file refund claim under Rule 9B(5) of the Rules as per various judicial pronouncements. The Revenue preferred an appeal against the order of finalization of Assistant Commissioner of provisional assessment dated 7.7.1998 and the appeal was decided by learned Commissioner .....

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ed for refund but claim of interest was rejected. Thereafter on 7.4.2003, the refund was given to the appellant without interest. The appellant challenged the order of rejecting the claim of interest of the appellant before learned Commissioner (Appeals), who vide order dated 23.12.2004 also rejected the claim of appellant for interest. Aggrieved from the said order, appellant is before us. 3. The learned Senior Counsel appearing on behalf of the appellant submits that as the assessments were fi .....

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e Revenue before the learned Commissioner (Appeals) and who on 30.5.2001 held that appellant is entitled for refund of ₹ 72.28 lakh. During the relevant time, provisions of section 11B of the Act came into force in the light as per Notification No. 45/99-CE (NT) dated 25.6.1999. Therefore, appellant is entitled to claim interest after three months from 30.5.2001 as they have also filed refund claim on 11.8.1998. In these circumstances, he prayed that interest be given to them as per CBEC C .....

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of GKN Drive Line (India) Ltd. vs. CC, New Delhi [2013 (295) ELT 466 (Tri-Del)]. He also relied on the decision of this Tribunal in the case of Indian Dyestuff Industries Ltd. vs. CCE, Mumbai [2001 (136) ELT 867 (Tri-Mumbai)] which has been affirmed by the Hon ble Apex Court as reported in [2002 (143) ELT A266 (SC)] to say that provision of Section 11A or 11B of Central Excise Act are not attracted as refund resulted from finalization of provisional assessment under Rule 9B(5) of the Central Ex .....

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as the said order has attained finality as nobody has challenged the said order. It is admitted fact that for the period prior to 25.6.1999 for finalization of provisional assessment under Rule 9B(5) of the Central Excise Rules, 1944, the provisions of section 11B of the Act were not attracted as held by this Tribunal in the case of Indian Dyestuff Industries Ltd.(supra) which has been affirmed by the Hon ble Apex Court reported supra. But it is a fact on record that appellant has filed refund .....

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5) provides that when the duty leviable on the goods is asssessed finally in accordance with the provisions of these Rules, the duty provisionally assessed shall be adjusted against the duty finally assessed, and if the duty provisionally assessed falls short of or is in excess of the duty finally assessed, the assessee shall pay the deficiency or be entitled to a refund, as the case may be . Any recoveries or refunds consequent upon the adjustment under sub-rule (5) of Rule 9B will not be gover .....

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