some occasions fewer duty is paid and some occasions much more duty is paid by the assessee or much more duty is ‘taken’ by the Division. In Central Excise Act, each conditions are relatively dealt with. The Division is entitled recovery of duties brief levied and brief paid together with fascination and penalty, (Sec 11A of ACT).
Similarly the assessee is entitled for the assert of refund, if the Duty is paid much more or if the assessee is entitled to get the refund beneath some Marketing Scheme of the governing administration for case in point Below Rule 18 and 19 of the Central Excise Rule 2002.This paper is just an humble attempt to highlight the simple needs of refund accessible to the assessee beneath Sec 11B of Central Excise Act., (Parallel provision Sec 27 of Tailor made Act), which examine as adhere to:-
Segment 11B, Declare for refund of [duty and interest, if any, paid on such duty]-
(1) Any particular person declaring refund of any duty of excise and fascination, if any duty of excise and fascination, if any paid on this kind of paid to the may well make an application for refund of this kind of duty to the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] right before the expiry of [one year] [from the relevant date] [[in such form and manner] as may well be approved and the application shall be accompanied by this kind of documentary or other proof (which include the files referred to in section 12A) as the applicant may well furnish to set up that the quantity of duty of excise in relation to which this kind of refund is claimed was collected from, or paid by, him and the incidence of this kind of duty [duty and interest, if any, paid on such duty] experienced not been handed on by him to any other particular person :
Offered that where an application for refund has been made right before the graduation of the Central Excises and Customs Guidelines (Modification) Act, 1991, this kind of application shall be deemed to have been made beneath this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) substituted by that Act :]
[Provided further that] the limitation of [one year] shall not utilize where any duty has been paid beneath protest.……………………… …………………………………………………………………………………….………………………………………………………………………………………………………………
If the earlier mentioned said Sec 11B of the Central Excise Act analyzed we uncover that, any particular person can assert the refund of duty of Excise right before expiry of a person calendar year from the applicable day when the incidence of duty experienced not been handed by him to any other particular person. For the sake of benefit we will explore the present topic beneath the adhering to heading:-
A) Who is entitled to assert the refund:– the language used in Sec 11B is “any particular person” and so any particular person can assert the refund of duty and may well make application for the same. The term any particular person is not outlined in the Act, but by way of the judicial pronouncement it is settled that refund can be submitted by assessee who has paid the duty or by the buyer on whom load of duty has been handed. [McNally Bharat Engineering V. CCE 2006(194) ELT 318 (CESTAT), VST Precision Components V. CCE 2003(157) ELT 493(CESTAT).
B) Relevant date for filling the Refund: – Sec 11B of the Central Excise Act says that the application for refund is to be filled before the concerned authority within one year from the relevant date. Now the question is when will be relevant date and it has be defined in clause (B) of the Explanation of the section 11B of the Central Excise Act. And it explain the starting point of relevant date under different circumstances, clause (B) of Explanation read as follow:-
B) “Relevant date” means, –
(a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods, –
(i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or
(ii) If the goods are exported by land, the date on which such goods pass the frontier, or
(iii) if the goods are exported by post, the date of dispatch of goods by the Post Office concerned to a place outside India;
(b) In the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid;
(c) In the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory;
(d) In a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction;
[(e) In the case of a person, other than the manufacturer, the date of purchase of the goods by such person;]
[(ea) In the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of Sec 5A, the date of issue of such order]
(eb) In scenario where duty of excise paid provisionally beneath this Act or the procedures made thereunder, the day of adjustment of duty just after the remaining assessment thereof
(ec) In scenario where the duty gets refundable as a consequence of judgment, decree, get or way of appellate authority, Appellate Tribunal or any court docket, the day of this kind of judgment, decree, get or way]
(f) In any other scenario, the day of payment of duty.]
C) Limitation: – The time restrict approved beneath Sec 11A is a person calendar year from the applicable Day. So, the application for refund has to be loaded within just on calendar year and this provision is necessary. Any refund loaded further than the because of day cannot be granted.[escorts limited V. UOI 1998 (97) ELT 211(SC), Porcelain Electrical Mfg. Co V. CCE 1998(98) ELT 583(SC)].,
However the limitation of a person calendar year will not be relevant in the scenarios where duty has been paid beneath protest, (proviso of the section 11B of CEA). Though time restrict approved beneath legislation must be strictly adhere but in some of the scenarios as held in judicial pronouncement time will not be relevant, they are as adhere to:-
a) Duty paid beneath protest… The proviso is inserted in the act with impact from 10.05.08 but even right before it was held that time restrict is not relevant when duty was paid beneath protest [ CCE V. Flotech power 2005(187) ELT 399(CESTAT)., CCE V. Allied Photographic 2004 (166) ELT 3 ( CESTAT)]
Infact when make a difference is beneath litigation any payment made is deemed to be payment made beneath protest and will not be affected by the limitation of a person calendar year.[ CCE V. klasspak P ltd 2005 (179) ELT 365 (CESTAT)., Parle Biscuits V. CC 2006(199) ELT 146 (CESTAT)].,
b) Refund on account of appellate get:- in scenario duty is refundable as consequence of judgment, decree, get, way of appellate authority or appellate Tribunal and any court docket, the day of this kind of judgment, Decree, Order or Route will be applicable day for the intent of refund application [ Explanation (B) sub clause (ec) of Sec 11A CEA. In the circumstance mentioned above the refund can be given on the basis of original refund claim and filling of fresh application is not necessary [spic ltd V. CC (2007) 209 ELT 91 (CESTAT)],
c) Money deposited in PLA: – because the revenue accessible in PLA belongs to the assessee refund of the same can be loaded at any time.[Navdeep Packaging Industries V. CCE 2007(210) ELT 417 (CESTAT)].,
d) Pre-deposit of duty: – because it is pre-condition of hearing an attraction, and consequently no time restrict is relevant.
These are the some of the cases where time restrict of declaring ought to not be insisted upon, nevertheless aside from earlier mentioned mention cases there are numerous situations when it was held by the courts that limitation of a person calendar year is not relevant.
D) Problem for Refund:- Generally there are two ailments which are sin-qua-non for declaring the refund, first of all duty has to be deposited and secondly the incidence or load of duty has not been handed to any other particular person other than the particular person who declaring the refund.
E) When assessee/buyer is entitled to get the refund:- Sec 11B(2) of the CEA claims that any quantity of refund for which the applicant is entitled be identified and shall be credit history to the customer welfare fund. The provision of Sec 11B(2) nevertheless claims that the refund will be paid to the applicant in adhering to scenarios:-
a) For rebate of duty on the goods exported.
b) Refund of Cenvat Credit history which may well gathered in the approach of producing in relation of the goods which is exported out of India.
c) Refund of duty beneath any rule or notification.
For all the earlier mentioned scenarios, it is must for the particular person declaring the refund that he has borne the duty and has not handed the incidence of duty to another particular person. The load to confirm that the incidence of duty has not been handed constantly lies on the particular person declaring the refund mainly because there is a presumption in legislation that the same has been handed on the buyer( sec 12 B of the CEA, parallel Sec 28 D of the customized Act).,
F) Doctrine of unjust enrichment: – The simple theme of the refund as delivered Sec 11B of the Act is to support a legitimate assessee in getting the excessive duty paid or to work out a suitable specified to him beneath legislation. As rightly held in numerous judicial pronouncements that refund is relevant only when duty of incidence has not been handed. Infact it is statutory prerequisite of the Act that if the duty of excise collected from the buyer the same must be deposited governing administration forthwith. ( Sec 11D of the CEA).
So no a person is entitled to make the duty from the each end i.e. recovery of duty from the buyer and at the same time declaring the refund from the governing administration. But the application of the unjust enrichment is not relevant in some of scenarios as delivered in proviso Below Sec 11B (2) of the Act.
G) Time restrict for disbursement of refund:- Sec 11BB approved that any duty get to be refunded within just 3 months from the day of obtained of application beneath Sec 11(1) and it is not completed so the applicant will be entitled for the fascination ( not beneath 5% and not Exceeding 30% per annum as fixed by the Central Government). The proviso of the Sec 11BB arrives routinely in procedure if refund is not sanctioned with in 3 months. Duty ought to be fixed by the commissioner for not disposing of refund assert within just 3 months from the day of receipt of application [CBE&C circular no 670/61/2002-CX Dated 01.10.02]
Refund of duty is not discretion of the department and infact it’s a make a difference of suitable for the assessee or the applicant looking at the reality that sec 11B of the CEA is a beneficial piece of laws supposed to support the legitimate assessee.