TMI Blog2017 (2) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... e was issued without a show-cause notice. In these circumstances, the order-in-original seeking refund claim become of first order of finalisation of provisional assessment - Appeal allowed - decided in favor of appellant. - E/815/08, Appln. No. E/CO/123/08 - A/88153-85154/17/SMB - Dated:- 4-1-2017 - Mr. Raju, Member (Technical) Shri. Bharat Raichandani, Advocate for appellant Shri. Ajay Kumar, Jt. Comm. (AR), for respondent ORDER Per Raju 1. The assessment of the appellant, M/s. CEAT Ltd. was done on provisional basis on account of certain deduction claimed by the appellant. The appellant had submitted bond and bank guarantee in respect of the said assessment. The assessment was finalised by denying the said deduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of provisional assessment. In support of this argument, he relied on the decision of the Tribunal in the case of Panasonic Battery India Co. ltd. 2014 (303) ELT 231. 2.1 Ld. Counsel further argued that they have produced a Chartered Accountant Certificate to the effect that there was no unjust enrichment but the Commissioner (Appeals) has wrongly recorded that no evidence was produced whatsoever. The learned Counsel further argued that this is not a case covered by the observation of Hon ble Apex Court in the case of Mafatlal Industries 1997 (89) ELT 247 (SC) . He argued that in their case it was the first order of finalisation of original assessment as the earlier order of finalisation of provisional assessment was withdraw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. (supra) it has been held that department is bound by law to make the refund without any claim being required to be filed for the period up to 12-7-2006. Entitlement to refund and finalization of provisional assessment under Rule 9B of the Central Excise Rules, 1944 is independent from the provision of refund under Section 11B of the Central Excise Act, 1944. Even under the amendment made by Notification No. 45/99-C.E. (N.T.), dated 25-6-1999 only the procedure established under sub-section (2) of Section 11B of Central Excise Act, 1944 has been made applicable to the refunds arising out of finalization of provisional assessments under Rule 9B of the Central Excise Rules, 1944. Accordingly the procedure regarding application of unjust en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eats the order-in-original as a finalisation after appeal. I find that the Hon ble Apex Court has observed as follows in the case of Mafatlal Industries (supra): However, if the final orders passed under sub-rule (5) are appealed against - or questioned in a writ petition or suit, as the case may be, assuming that such a writ or suit is entertained and is allowed/decreed - then any refund claim arising as a consequence of the decision in such appeal or such other proceedings, as the case may be, would be governed by Section 11B 6. I find that in the instant case, the first order of finalisation of assessment was directed to be withdrawn by the Hon ble High Court as the same was issued without a show-cause notice. In these circ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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