TMI Blog2018 (4) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... , J ) Though, M/s.Apex Laboratories, Chennai, 1st respondent has been served and name is shown, there is no appearance either in person or through pleader. 2. Instant Civil Miscellaneous Appeal is filed against the Final Order No.1033 of 2008 dated 23.09.2008, on the file of the CESTAT, Chennai, on the following substantial questions of law. (i) Whether the 2nd respondent was right in holding that the doctrine of unjust enrichment was not applicable to any claim for refund of duty consequential to finalization of provisional assessment for any period prior to 25.06.99, as the refund claim in the subject case was consequent to finalization of Provisional Assessment on 30.10.2000 for the period 1998-99 especially considering that the amendment to Section 11B of Central Excise Act, 1944 was brought with effect from 01.08.98 whereby refund consequent to finalization after 01.08.98 would be covered by the provisions of Section 11B ibid, as held by the Hon'ble High Court, Mumbai in the case of M/s.Standard Drum Barrels Mfg. Co.,? (ii) Whether the 1st respondent is entitled to canvass the correctness or otherwise of the order passed in order-in-original 19/2001 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 033/08 dated 23.09.2008, the tribunal held that doctrine of unjust enrichment was not applicable to any claim for refund of duty consequential to the finalization of provisional assessment for any period prior to 25.06.1999 and allowed the appeal filed by the assessee. 6. As against the order of the Appellate Tribunal, vide Final Order No.1033/08 dated 23.09.2008, the department has preferred the instant Civil Miscellaneous Appeal on the substantial questions of law, stated supra. 7. Supporting of the substantial questions of law raised, Mr.A.P.Srinivas, learned counsel for the appellant submitted that the Appellate Tribunal has erred in holding that doctrine of unjust enrichment was not applicable to any claim for refund of duty consequential to finalization of provisional assessment for any period prior to 25.06.99. 8. Learned counsel for the appellant further submitted that the Appellate Tribunal ought to have noted that, the provisional assessment for the year 1998-99 was finalized vide Order-in-Original No.77/2000 dated 30.10.2000 and that the Adjudicating Authority vide Order-in-Original cited supra held, at the time of finalization of provisional assessment that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the refunds required to be made by the Revenue on finalization of the provisional assessments under the Excise Rules have to be claimed by the assessee by making an application within the time specified under Section 11B of the Excise Act. In other words, where refund accrues to the assessee on finalization of the provisional assessment after August, 1, 1998, such refund can be given to the assessee, only if the assessee claims that refund by making an application for refund within the time stipulated under Section 11B of the Excise Act and further establishes that the refund claimed therein has not been passed on to third parties. 11. Learned counsel for the appellant submitted that it was further held by High Court, Mumbai that the amendment effected to Rule 9B on June 25, 1999 is merely clarificatory in nature, as it merely reiterates the existing statutory provisions contained in Section 11B of the Excise Act from August, 1, 1998. Proceeding further, the High Court held that the assessee has filed the refund application on November, 1, 1999 and that since amendment to Rule 9B(5) had come into force from June 25, 1999, the said refund application made on November 1, 1999 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Central Excise, Chennai Vs. TVS Suzuki Ltd., reported in 2003 (156) ELT 161 (SC) and Commissioner of Central Excise, Mumbai vs. M/s.Allied photographics India Ltd., [2004 (166) ELT 3 (SC)] or without citing any case law, but merely cited the amendment made to Rule 9 of Central Excise Rules, 1944 with effect from 26.05.1999, to hold that the principles of unjust enrichment would apply to refund in the given circumstances, only after 26.05.99. However, it is worthwhile to mention that the High Court, Mumbai in the case of M/s.Standard Drum Barrels Mfg. Co., [2006 (199) ELT 590 (Bom)] after discussing in detail the decisions rendered in the case of M/s.TVS Suzuki and M/s.Allied Photographics cited supra, distinguished those decisions and held that in the case of M/s.TVS Suzuki, refund on finalization of the provisional assessment had accrued to the assessee, therein, prior to the amendment of Section 11B on August 1, 1998. Similarly, with regard to M/s.Allied Photographics also, it was held that the issue before the Apex Court was relating to the refunds arising on finalization of the provisional assessment prior to August 1, 1998. Accordingly, it proceeded to hold that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the subject Final Order also arose consequent to finalization of provisional assessment on 30.10.2000, which also fell after 01.08.1998. 16. For the abovesaid reasons, Mr.A.P.Srinivas, learned counsel for the appellant prayed for setting aside the Final Order No.1033 of 2008 dated 23.09.2008. 17. Heard the Mr.A.P.Srinivas, learned Senior Standing counsel appearing for the appellant and perused the materials available on record. 18. Though the impugned order is assailed on the above grounds stated supra and Mr.A.P.Srinivas learned senior standing counsel made submissions in support of the substantial questions of law, placing reliance on the decision of the High Court, Mumbai in Commissioner of Central Excise Vs. M/s.Standard Drum Barrel Mfg. Co., reported in [2006 (199) ELT 590 (Bom.)], we are not inclined to accept the same, for the reason that when a similar issue came up for consideration, a Hon'ble Division Bench of this Court in Commissioner of Central Excise, Chennai-I, Vs. Dollar Company Private Limited, reported in 2015 (327) ELT 13 (Mad.)., after analysing Section 11 B of the Central Excise Act, which relates to claim for refund of duty, other provisions and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment thereof; (f) ........ 9. In this case, there is no doubt that clause (eb) to Explanation B of Section 11B is squarely applicable and the assessee also does not dispute the same. But the only issue that is raised here is that whether the refund claim has been made in terms of the said provisions. It is evident from the records that the order of the Commissioner (Appeals) is dated 21.8.98 and the refund claim has been made by the assessee on 21.9.98. Therefore, for all purposes, the relevant date will be the date of adjustment of the duty after final assessment made thereof. In this case, consequent to the order of the Commissioner (Appeals), the refund claim was made. Therefore, it is clear that the date is well within the time stipulated under Section 11B and there can be no dispute raised by the Department on this aspect. Accordingly, the first substantial question of law becomes totally irrelevant and does not require to be answered. 10. The 2nd question of law raised is whether Notification No.45/99-C.E. (N.T.) dated 25.6.1999 would be applicable to the facts of the present case. 11. By virtue of the amendment, the provisions to sub-section (2) to Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lished under sub-section (2) of Section 11B of the Act. There is no dispute that the refund claim in this case was made much prior to the addition of the proviso in sub-rule (5) of Rule 9B. On the date on which the refund claim was made, the law applicable was the law as declared by this Court in Mafatlal Industries Ltd. (supra) which we have reproduced above. However, it is contended by the learned counsel Shri Verma for the department, that the claim of refund would be governed by the proviso introduced in sub-rule (5) of Rule 9B, and that as a consequence, the restrictions in Section 11A and Section 11B with regard to the procedure for refund would apply to the case of the respondent. The same question came up for consideration of this Court in Sinkhai Synthetics Chemicals Pvt. Ltd. v. C.C.E., Aurangabad, (2002) 143 E.L.T. 17 SC. This Court took the view that the case would be governed by the rule laid down in Mafatlal Industries Ltd. (supra). This view has been reiterated in a subsequent judgment of this Court in C.A. No. 2533 of 2001. (Commissioner of Central Excise, Meerut v. M/s. Star Paper Mills Limited, [2003] 7 SCC 27) upholding the view of the tribunal that the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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