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TMI Blog2021 (10) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... on No.45/99 CE dated 25.06.1999? 3. Whether in the case of provisional assessment, the refund of duty is governed by the provisions contained in proviso [d] & [e] of Section 11B [2] of the Central Excise Act, 1944? 4. Whether the presumption contained in Section 12B of the Central Excise Act, 1944 applies or not in case of Provisional Assessments also?" 2. The assessee is engaged in the manufacture of Tyres, Tubes and Flaps falling under Chapter 40 of the Schedule in Central Excise Tariff Act, 1985. The assessee cleared the goods to various depots situated throughout India. The goods were removed from factory gate on stock transfer basis to these depots from where they were sold to dealers, who were their first customers as and when demand arises. The assessee offered various discounts for the dealers. The value of the goods on which duty was to be discharged was not known at the time of clearance from the factory gate as required under Section 4 of the Central Excise Act, 1944 ['Act' for short]. Subsequently, at the time of finalization of the provisional assessment for various periods, it was noticed that the assessee had paid duty more than what was payable on final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words, the matter was related to Rule 9[5] of the Rules. 6. Secondly, it was argued that the interpretation given by the authorities inasmuch as Rule 7[6] is concerned, is not in conformity with the ruling of the Hon'ble Apex Court in the case of Commissioner of Central Excise, Madras V/s. Addison & Co. Ltd., [(2016) 73 taxmann.com 319 (SC)]. Placing reliance on the judgment of Addison & Co. Ltd., supra, the learned counsel argued that the authorities have failed to examine whether the incidence of duty was passed on to the ultimate buyer/customer for claiming refund in the provisional assessment. Thus, the learned counsel argued that the judgment of the Commissioner of Central Excise, Mumbai-II V/s. Allied Photographics India Ltd., [2004 (166) E.L.T. 3 (SC)] is not applicable to the facts of the present case. 7. Learned counsel for the assessee submitted that the refunds released pursuant to finalization of provisional assessments by the Department have been challenged in this appeal relating to the Assessment Years 2000-01; 2009-10; 20010-11; 2011-12 and 2012- 13. The factual finding that the assessee/manufacturer had borne the incidence of duty has been admitted i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer deems it necessary to subject the excisable goods to any chemical or any other test for the purpose of assessment of duty thereon; or [c] where an assessee has produced all the necessary documents and furnished full information for the assessment of duty, but the proper officer deems it necessary to make further enquiry [including the inquiry to satisfy himself about the due observance of the conditions imposed in respect of the goods after their removal] for assessing the duty; The proper officer may, either on a written request made by the assessee or on his own accord, direct that the duty leviable on such goods shall, pending the production of such documents or furnishing of such information or completion of such test or inquiry, be assessed provisionally at such rate or such value [which may not necessarily be the rate or price declard by the assessee] as may be indicated by him, if such assessee executes a bond in the proper form with such surety or sufficient security in such amount, or under such conditions as the proper officer deems fit, binding himself for payment of the difference between the amount of duty as provisionally assessed and as finally assessed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sional assessment. Rule 9B(4) dealt with clearance of goods provisionally assessed whereas rule 9B(5) dealt with adjustment of provisionally assessed duty against finally assessed duty. The said rule 9B was a complete code by itself. On compliance with the conditions therein, the proper officer was duty bound to refund the duty without requiring the assessee to make a separate refund application. The said rule, therefore, provided for making of refund. On the other hand, section 11B(1) dealt with claiming of refund by the person who has paid duty on his own accord. In this connection, section 4 of the said Act is relevant. In the case of Bombay Tyre (supra) it has been held that section 3 of the Act refers to levy of duty whereas section 4 dealt with assessment. Assessment means determination of the tax liability. Under the Act, duty was payable by the manufacturer on his own account. Hence, under section 11B(1), such a person had to claim refund by making an application within six months from the relevant date except in cases where duty was paid under protest in terms of the proviso. However, even in such cases, the person claiming refund had to pay the duty under protest in ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich provides that if an assessee is entitled to refund, such refund shall not be made to him except in accordance with the procedure established under Subsection [2] of Section 11B of the Act as inserted with effect from 25.07.1999. Rule 7[6] read with the proviso provides that the duty of excise paid by the manufacturer, if he had not passed an incidence of such duty to any other person be paid to the applicant instead of crediting to the fund, the refund amount determined under Sub-rule[3]. Thus, it cannot be held that Rule 7[6] cannot be equated to Rule 9[5] inasmuch as the claim of refund is concerned. It is obvious that in Indian Telephone Industries Ltd., supra, which has been referred to by the Tribunal for determining the issue on hand being confirmed by this Court, the same is applicable to the facts of the case. 14. In Addison & Co. Ltd., supra, the Hon'ble Apex Court has held that the assessee has admitted the incidence of duty was originally passed on to the buyer. No material was placed on record to show that the buyer to whom the incidence of duty was passed on by the assessee did not pass it on to any other person. It has been thus held that the sine qua ..... X X X X Extracts X X X X X X X X Extracts X X X X
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