TMI Blog2017 (1) TMI 1511X X X X Extracts X X X X X X X X Extracts X X X X ..... Per. B. Ravichandran The appeal is against order dated 22/08/2006 of Commissioner (Appeals), Meerut I. The appellants are engaged in the manufacture of photocopier machines liable to Central Excise duty. A dispute arose regarding certain deductions/ abatements claimed by the appellant when they filed price list for approval on 10/10/1987. The Jurisdictional Assistant Commissioner disallowed the deductions claimed by the appellant from the retail price of the goods manufactured and sold by the appellant. On the request of the appellant provisional assessment was ordered; appellant paid duty under protest on the higher value without deductions/abatements. After various litigations before the Commissioner (Appeals), Tribunal and Allahabad High Court, finally a position emerged that the claims for refund filed by the appellant covering the period 10/10/1987 to 31/03/1991 was valid and there was an excess payment of excise duty. The Original Authority sanctioned the refunds but credited the amount to the consumer welfare fund as he held that the appellants cannot receive the refund amount in view of the bar due to unjust enrichment in terms of Section 11B of the Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 9B of the Central Excise Rules, 1944 with effect from 25-6 1999 under Notification No. 45/1999-C.E. (N.T.), dated 25-6-1999. Rule-9B(5) dealing with finalization of provisional assessment and after its amendment exists in the following form : (5) When the duty leviable on the goods is assessed 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 : Provided that, if an assessee is entitled to a refund, such refund shall not be made to him except in accordance with the procedure established under sub-section (2) of Section 11B of the Act. 6. On the Customs side provisional assessments refunds arising during finalisation of Provisional assessments is covered by Section 18 of the Customs Act, 1962. By Section 21 of the Taxation Laws (Amendment) Act, 2006, inter alia, sub-section (5) to Section 18 was introduced with effect from 13-7-2006 and the same is reproduced below : (5) The amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s can be considered from a slightly different angle. While introducing the Taxation Laws (Amendment) Bill, 2005 (Bill No. 74 of 2005) the Notes on Clauses in relation to Section 18 of the Act indicate that sub-sections (3), (4) and (5) to Section 18 of the Act, have been inserted to provide for a mechanism to regularise the payments of duty short levied and interest thereon and duties that are to be refunded on finalization of provisional assessment and in this context in the report of the Standing Committee on Finance it has specifically been noted that this amendment became necessary because Section 18 of the Act which provides for provisional assessment of duty presently (i.e. upto 12-7-2006) does not provide for various issues arising from the finalization of provisional assessment. Thus it becomes apparent that the amendment in question is substantive in nature when one finds that various provisions have been inserted which were not forming part of the original Section 18 of the Act as it stood upto 12-7-2006. It is not possible to state that the provisions for payment of interest on duty short levied or entitlement to interest on duty paid in excess of the finally assessed du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 8. After analyzing the law laid down by Supreme Court in the case of CCE, Mumbai-II v. Allied Photographics Ltd. [2004 (166) E.L.T. 3 (S.C.)], Hon ble High Court in para 18 of the order in the case of Commissioner of Customs v. Hindalco Industries Ltd. (supra) has held that there is distinction between making of a refund and claiming of a refund and that the amendment carried out in Section 18(5) on 13-7-2006 cannot be held to be clarificatory and retrospective in nature. In para 21 of the judgment in the case of Hindalco Industries Ltd. (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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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