TMI Blog2001 (7) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... trictions imposed by Section 11B of the Central Excise Act with regard to refund of duty will not apply to claims for refund when the matter is still at the stage of provisional assessment, and no final assessment to duty has been made. 2.A Constitution Bench of the Supreme Court in the case of Mafatlal Industries Ltd. v. Union of India [1997 (89) E.L.T. 247 (S.C.)] in the majority judgment at p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (5) of Rule 9B will not be governed by Section 11A or Section 11B, as the case may be. However, if the final orders passed under sub-rule (5) are appealed against - or questioned in a writ petition or suit as the case 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 procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty paid prior to, or consequent upon the provisional assessment and at a stage where the final assessment has not been made. 4.Learned Counsel for the Revenue submitted that Rule 9B sub-rule (5) was subsequently amended with effect from 25-6-1999 by the addition of a proviso. It is not the case of the Revenue that that amendment is retrospective in operation. We are here in this case concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... details of the appeal said to have been filed has not been furnished. 6.In any event, we are bound by the law laid down by the Apex Court, and that law as is evident from a reading of paragraph 95 of the judgment in the case of Mafatlal (supra) is that Section 11B of the Act will not apply to the claims for refund in respect of provisional assessments. 7.We, therefore, do not see any need to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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