TMI Blog2017 (5) TMI 614X X X X Extracts X X X X X X X X Extracts X X X X ..... stment of duty was made on 18-7-1997, therefore the present refund claim is arising out of the deposited amount of provisional assessment. Therefore refund which is arising out of finalization of assessment will not be governed by the provision of unjust enrichment. The refund claim is neither hit by time bar nor hit by unjust enrichment - appeal allowed - decided in favor of appellant. - E/414/08-MUM, E/CO/90/08-MUM - A/87234-87235/17/SMB - Dated:- 28-4-2017 - Mr. Ramesh Nair, Member(Judicial) Shri. Bharat Raichandani, Advocate for the Appellants Shri. Ajay Kumar, Joint Commissioner(A.R.) for the Respondent ORDER The fact of the case is that appellant have been paying excise duty on provisional basis for the reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of MRF limited allowed deductions on turnover discount and interest on receivables. On 19-9-1996 pursuant to the said order passed by the Commissioner(Appeals), the Superintendent of the Central Excise directed the appellant to pay central excise duty of ₹ 36,06,791/- for the period from March, 1989 to March, 1996. On 6-11-1996 the appellant replied that deduction on account of interest on receivables has been claimed only in respect sales effected on credit basis. Hence, full deduction should be allowed. On 31-3-1997 the Asstt. Commissioner passed order allowing deduction on interest on receivables for period from March, 1989 to October, 1996. The appellant vide letter dated 18-7-1997 furnished revised statement for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Order-in-Original appellant filed appeal before the Commissioner(Appeals) which came to be rejected therefore the appellant is before me. 2. Shri. Bharat Raichandani, Ld. Counsel for the appellant submits that refund claim in the present case was mature only after matter was decided by this Tribunal on 12-11-2003. The present refund claim was filed on 23-4-2004 therefore the same is not time bar. He further submits that even way back in 1997 vide letter of the Asstt. Commissioner dated 23-12-1997, the Asstt. Commissioner clearly observed that appellant has made excess payment of 39,65,041/-. In the said letter it was also mentioned incidence of payment was not passed on to any other person. He submits that appellant vide letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Valves Ltd [2003(162) ELT 417(Tri. Chennai)] (d) Pioneer India Electronic(P) Ltd Vs. Union of India[2014(301) ELT 59(Del.)] (e) CCE, Guntur Vs. Asian Peroxide Ltd[2006(205) ELT 266(Tri. Bang)] (f) CC, Kandla Vs. Hindustan Zinc Ltd[2009(235) ELT 629(Tri. LB)] 3. On the other hand, Shri. Ajay Kumar, Ld. Joint Commissioner(A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that first time refund claim was filed in 23-4-2004 which should have been filed before 11-1-1999 in term of insertion of sub clause 'eb' from 1-8-1998 under Section 11B of the Central Excise Act, 1944 therefore refund claim is time bar. He further submit that provisional assessment was already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quantification of the demand of duty was made by the department and again same was challenged by the appellant before the Supreme Court. In the subsequent proceedings and earlier proceedings the show cause notice was issued and demand was raised then the matter travelled up to Tribunal where the appeal of the appellant was allowed. Therefore in my view, entire issue of valuation and consequential determination of duty has finally came to an end only after Tribunal's order. The Tribunal's order was passed on 12-11-2003 therefore in my view refund arises only thereafter, hence refund claim filed on 23-4-2004 is within the time limit. Moreover, if it is presumed finalization of assessment is done in the year 1997 the appellant even at ..... X X X X Extracts X X X X X X X X Extracts X X X X
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