The Commissioner of CGST & Central Excise, Thane Versus F.G.P. Ltd.
Central Excise
2018 (10) TMI 22 – BOMBAY HIGH COURT – TMI
BOMBAY HIGH COURT – HC
Dated:- 19-9-2018
CENTRAL EXCISE APPEAL NO. 10 OF 2018
Central Excise
M.S. SANKLECHA & RIYAZ I. CHAGLA, JJ.
Mr. M. Dwivedi, for the Appellant.
Mr. Rajesh Oswal a/w Ms. Divyasha Mathur, a/w Mr. Viraj Bhate, i/by PDS Legal, for the Respondent.
ORDER :
1. This Appeal under Section 35G of the Central Excise Act, 1944 challenges the order dated 18th August 2016 passed by the Customs, Excise and Service Tax Appellate Tribunal (for short “the Tribunal”).
2. Shri. Dwivedi, the learned Counsel appearing for the Revenue urges only the following question of law for our considera
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protest and filed refund claims. It was finally held that for the period 1988 to 1990 the glass filament was not excisable goods and therefore, no duty was payable. This resulted in the Respondent being entitled to refund.
4. The Appellant sought to deny the refund to the Respondent on the ground that the goods were not provisionally assessed and in fact, the duty had been paid under protest. The impugned order of the Tribunal holds that the clearance effected by the Respondent was Provisional under Rule 9B of the Rules. Thus, the excise duty paid by them was to be refunded.
5. Shri. Dwivedi, the learned Counsel for the Revenue submits that there was no provisional assessment as Respondent had paid the duty under protest. Therefore, the
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uring the period 1988 to 1990 were provisional under Rule 9B of the Rules. Further, no question of unjust enrichment would arise, as the refund claims were filed in 1991 that is much before the amendment to Rule 9B of the Rules in the year 1999 which requires the officers of the Revenue before granting refund, to be satisfied that there is no unjust enrichment on finalization of the provisional assessment.
8. In the above view, the finding of fact by the Tribunal that the assessment were provisional under Rule 9B of the Rules cannot be found fault with in the absence of the same being shown to be perverse. In the above view, the proposed question does not give rise to the substantial question of law. Thus, not entertained.
9. Accordingly,
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