TMI Blog2016 (12) TMI 1115X X X X Extracts X X X X X X X X Extracts X X X X ..... of provisional assessment - The Original Authority shall also take into consideration the interest to be paid on the said amount from the date on which provision for paying interest on delayed refund came into operation on the statute of Central Excise Act, 1944 - appeal allowed - decided in favor of appellant-assessee. - E/2468/2007-EX[DB] - FINAL ORDER NO. 70987/2016 - Dated:- 22-9-2016 - Mr. Anil Choudhary, Member (Judicial) and Mr. Anil G. Shakkarwar, Member (Technical) Shri Atul Gupta, Advocate for the appellant Shri Pawan Kumar Singh, Supdt., (A..R.) for the Department ORDER The present appeal deals with the claim of refund of ₹ 14,10,371/- claimed by the appellant by filing four refund applications on 26.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld attract Section 11B and therefore bar of unjust enrichment would apply and therefore held that in the instant case time bar and unjust enrichment was applicable and therefore rejected the appeal. Aggrieved by the said Order-in-Appeal dated 31.05.2007, the appellant is before this Tribunal. 4. The grounds of appeal are as follows :- a) The date of finalization of price and of provisional assessment is 17.04.1997, which is prior to the date of amendment of proviso to Rule 9B-(5) of Central Excise Rules, 1944 which provides that in respect of provisional assessment bar of unjust enrichment would apply; b) The refund claimed if arose on account of finalization of provisional assessment prior to 25.06.1999 then the amount is li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ready sanctioned by 25 refund claims and the assessment of cash discount attained the finality, after the finalization of provisional assessment and after the dismissal of department s appeal by Hon ble Supreme court vide his order dated 01.04.2003 and in the said verification report Superintendent had mentioned that the duty element involved in the cash discount during the above period have been checked. The said report further states that the provisional assessment was finalized on 17.04.1997 and the refund arising out of such finalization of provisional assessment were allowed in 25 refund claims and four refund claims involving the refund of ₹ 14,10,371/-, also were related to the above finalization of provisional assessment but w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Duty was not collected on that component and as a result Excise Duty was not collected from their customers and duty incidence was not passed on. We find that under said Rule 9B the concerned Assistant Commissioner should have allowed refund of ₹ 14,10,371/- while passing the finalization order on 17.04.1997, since said four refund claims filed on 26.07.1993 were pending before him on 17.04.1997. We further find that as per report submitted by Revenue the refund claims were filed on 26.07.1993 i.e. much before the finalization of provisional assessment and within six months from the date of paying duty for the month of January, 1993 to April, 1993. We further find that proviso to Sub rule 5 of Rule 9B of Central Excise Rules, 1944 cam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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