TMI Blog1977 (4) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... on would be covered by Section 11B. The present case is not a case of any adjustments in the payment of excise duty made under sub-rule (5) of Rule 9B. The refund claim does not appear to be a claim arising under Rule 9B(5). It is an independent claim for refund on the basis of Notification 71/78, dated 1st March, 1978. The appellants challenged the rejection of their claim for refund right upto CEGAT and filed a writ petition before the Andhra Pradesh High Court also. Therefore, the provisions of Section 11B are attracted and the appellants are governed by the ratio of Mafatlal Industries's case [ 1996 (12) TMI 50 - SUPREME COURT OF INDIA ] - 777 of 1995 - - - Dated:- 1-4-1977 - Sujata V. Manohar and V.N. Khare, JJ. [Order]. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication list of 23rd March, 1978 was finally approved with effect from 1-4-1978 on 24th April, 1980. 3.The claim of the appellants for refund was rejected as time barred by the Assistant Collector in view of Rule 11 of the Central Excise Rules, 1944. On an appeal, the Collector (Appeals) by his order dated 4th August, 1981 upheld the order of the Assistant Collector. On further appeal to the Central Excise and Gold Control Appellate Tribunal (CEGAT), the CEGAT rejected the appeal of the appellants by its order dated 24th April, 1987 upholding the contention of the department that the refund claim having been filed beyond the period of six months from the date of payment of duty, it was barred by limitation under Rule 11 of the Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment . On the facts of that case, however, this Court had held that the payment of duty which was made by the appellants in that case was provisional and the procedure under Rule 9B had been followed. We have not been shown any material on record to indicate whether the appellants in the present case had cleared carbon dioxide manufactured by them by following the procedure laid down in Rule 9B or that the payment of excise duty which the appellants had made during the relevant period was provisional. This is a matter which the appellants will have to establish before the departmental authorities when the matter goes back to the departmental authorities for considering the claim of the appellants for refund under the ratio of Mafatlal Indu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase 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. It is also made clear that if an independent refund claim is filed after the final decision under Rule 9B(5) re-agitating the issues already decided under Rule 9B - assuming that such a refund claim lies - and is allowed, it would obviously be governed by Section 11B. It follows logically that position would be the same in the converse situation." 7.This Court has thus held that any adjustment which is made under sub-rule (5) of Rule 9B dealing with provisional assessments is not governed by Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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