At, Customs Excise Service Tax Appellate Tribunal East Zonal Bench Bench, Kolkata
By, THE HONORABLE JUSTICE: P.K. CHOUDHARY
For Petitioner: Vikash Agarwal, CA And For Respondents: S.S. Chattopadhyay, Supdt. (AR)
1. Heard both sides and perused the case records. The appellant filed refund claim vide letter dated 23-10-2008, in terms of Section 11B of the Central Excise Act, 1944 as they paid excess Central Excise duty upon finalization of the assessments for clearance of the finished goods for the period from 1-4-2006 to 30-6-2006. The Adjudicating Authority rejected the refund claim as time barred. By the impugned order, the first appellate authority rejected the appeal filed by the appellant. Hence the present appeal.
2. I find that the Adjudicating Authority observed that the assessment was finalized on 28-9-2007 in terms of Rule 7(1) of the Central Excise Rules, 2002. The refund claim was filed on 23-10-2008 which is beyond the limitation period of one year.
3. In terms of Section 11B of the Act, 1944, the relevant date means, in case where the duty of excise is paid provisionally under this Act or the Rules made thereunder, the date of adjustment of duty after final assessment thereof. The words "the date of adjustment of duty after final assessment" in Section 11B(1), sub-clause (eb) of clause (B) of the explanation to Section 11B, would indicate that the relevant date is not the date of finalization of the assessment but the date of adjustment of duty after final assessment. Both the authorities below had proceeded on the basis of date of final assessment and have not examined the date of adjustment of duty after final assessment. So, the authorities below should decide the refund claim on the basis of date of adjustment of duty after the final assessment.
4. In view of the above discussion, the impugned orders are set asi
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de. The matter is remanded to the Adjudicating Authority to decide afresh on the basis of the above observation. The appeal filed by the appellant is allowed by way of remand.