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2020 ] COMMISSIONER OF CENTRAL EXCISE, PUNE-II v. SULAKHI CHEMICALS PVT. LTD. 273

10. In the absence of any specific provision for exemption by way of re-
fund in the SEZ Rules or under Central Excise Rules, I find that the appellant is
not entitled to refund of the duty. I find that in the assessee’s own case decided
by the CESTAT-Kolkata, vide Final Order No. F/76332-76339/2017, dated 30-7-
2017, this issue does not appear to have been contested by the revenue or dis-
cussed. In the light of the judgment of the Constitutional Bench of the Hon’ble
Apex Court in the case of Dilip Kumar & Co. and Others (supra), [2018 (361) E.L.T.
577 (S.C.)]. I find that no exemption by way of refund can be sanctioned to the
appellant in the absence of any explicit provisions.
11. I also find that the assessment by the supplier of goods has not been
challenged. At least, there is nothing on record to indicate so. It has been held by
the Hon’ble Apex Court in the case of Priya Blue Industries Pvt. Ltd. (supra) and
Flock India Pvt. Ltd. (supra) that unless the order of assessment has been chal-
lenged no claim for refund under Section 11B can be made. These judgments
were distinguished by the Hon’ble High Court of Delhi in the cases of Aman
Medical Products Pvt. Ltd. [2009-TIOL-566-(H.C.)-DEL-CUS = 2010 (250) E.L.T. 30
(Del.)] and Micromax Informatics Ltd. [2016 (335) E.L.T. 446 (Del.)]. However, the
Larger Bench of the Hon'ble Supreme Court has now decided in the case of ITC
Ltd. [2019-TIOL-418-(S.C.)-CUS-LB = 2019 (368) E.L.T. 2016 (S.C.)] that the ratio
of Priya Blue Industries Pvt. Ltd. (supra) and Flock India Pvt. Ltd. (supra) applies in
every case and no refund can be sanctioned even in cases of self assessment un-
less such assessment itself is appealed against before the Commissioner (Ap-
peals). In view of the above, I find that the assessee is not entitled to refund at all
in the present case, both on account of lack of explicit provision for such refund
as well as on the ground that the assessments were not challenged by the appel-
lant.
12. In view of the above, appeals are rejected.
(Order pronounced in the open Court on 5-11-2019)
_______

2020 (372) E.L.T. 273 (Tri. - Mumbai)
IN THE CESTAT, WEST ZONAL BENCH, MUMBAI
[COURT NO. I]
Dr. D.M. Misra, Member (J) and Shri S. Srivastava, Member (T)
COMMISSIONER OF CENTRAL EXCISE, PUNE-II
Versus
SULAKHI CHEMICALS PVT. LTD.
Final Order Nos. A/87064-87065/2019-WZB, dated 4-9-2019 in Appeal
Nos. E/510 & 733/2007
Spirit - Motor spirit - Industrial solvents and residue obtained as in-
termediate products by distillation of naphtha over and above boiling points
and further blended with additives to obtain solvents SL-2 and SL-11, not clas-
sifiable under sub-heading 2710 13 of Central Excise Tariff as motor spirit par-

EXCISE LAW TIMES  15th April 2020  243