COMMISSIONER OF C. EX. Vs. INDUSTRIAL CABLES LTD.

JUDGEMENT

(1.) THE Department has filed this appeal against the order of the Commissioner (Appeals) allowing a refund claim of the respondents. The refund claim for Rs. 26,719/ - was filed on 13 -9 -83 and the same was in respect of the Central Excise duty paid in excess in respect of goods cleared on 12 -1 -83 and 11 -2 -83. The price lists for the said clearances were finalized on 6 -5 -83. The original authority rejected the refund claim on the ground of limitation and unjust enrichment. The first appellate authority has, by order -in -appeal No. 93/2003, allowed the refund claim, holding that the claim is not hit by time bar. It appears from the record that this case has had a chequered history between the aforesaid order of the original authority and the order of the Commissioner (Appeals) presently under challenge. There have been several rounds of litigation over this period, during which the question relating to unjust enrichment got settled in favour of the assessee. Accordingly, the only question which ultimately arose before the lower appellate authority was whether the refund claim was time -barred or not. In the present appeal of the Department, the only ground raised against the impugned order is that there was no provisional assessment at the time of clearance of the goods and, therefore, the refund claim filed on 13 -9 -83 after the period of six months from the dates of payment of duty (12 -1 -83 and 11 -2 -83) was barred by limitation under Section 11B of the Central Excise Act.

(2.) HEARD both the sides. The learned DR reiterates the above ground of the appeal. The learned Counsel for the respondents submits that the issue involved in this case is covered by the Tribunal's Larger Bench decision in the case of Mardia Steel Limited [2001 (129) E.L.T. 334 (T -LB) = 2001 (43) RLT 533]. The Larger Bench, which was called upon to examine the applicability of the Apex Court's decision in Samrat International case [1992 (58) E.L.T. 561 (S.C.)] to cases arising under Rule 9 -B of the Central Excise Rules, 1944, held that any payment of duty was provisional where a decision on classification list/price list was pending.

(3.) I have examined the submissions in the light of the Larger Bench decision. In the instant case, admittedly, price lists in respect of the goods cleared by the respondents on 12 -1 -83 and 11 -2 -83 were approved only on 6 -5 -83. The refund claim was filed on 13 -9 -83 within the period of six months prescribed under Section 11 -B of the Central Excise Act. Till 6 -5 -83, the payment of duty was provisional. During that period, the provisions of Section 11 -B were not applicable. The limitation provision of Section 11 -B, in the instant case, operated only from 6 -5 -83, and the subject refund claim was filed within the prescribed period of six months from the said date. Hence the Commissioner (Appeals) has rightly allowed the refund claim. The impugned order is upheld and the appeal of the Revenue is rejected.