2004 (2) TMI 483 - AT - Central Excise

Summary

Issues:
1. Whether the refund claim was rightly allowed by the Commissioner (Appeals) despite being rejected by the Assistant Commissioner.
2. Whether the assessments can be treated as provisional under Rule 9B without a formal order from the proper officer.
3. Whether the payments made without following Rule 9B procedures can be deemed as provisional.

Analysis:
1. The first issue revolves around the refund claim of the respondent, which was initially rejected by the Assistant Commissioner as time-barred but later allowed by the Commissioner (Appeals). The dispute arose from the contention that the assessment was provisional, and the claim was within the stipulated limitation. The Tribunal noted that the admissibility of the claim was not disputed, and the merits of the claim were not discussed further.

2. The second issue delves into whether assessments can be considered provisional under Rule 9B without a formal order from the proper officer. The respondents argued that they complied with Rule 9B by requesting provisional assessment, even though no formal order was issued. The Tribunal analyzed the text of Rule 9B(1) and emphasized that the proper officer must direct the assessee after an inquiry to assess the duty provisionally. Since no such direction was given in this case, the Tribunal rejected the Revenue's claim that there was no provisional assessment.

3. The third issue addresses whether payments made without following Rule 9B procedures can still be deemed provisional. The Tribunal highlighted that the first proviso of Rule 9B stipulates that clearances submitted under a provisional assessment request shall be deemed as provisionally assessed until a direction is issued by the proper officer. As no such direction was issued in this case, the Tribunal concluded that the duty payments were deemed provisional under Rule 9B itself. Additionally, the Tribunal cited a precedent where payments made pending finalization of price/classification lists were treated as provisional, even without following Rule 9B procedures.

In conclusion, the Tribunal rejected the Revenue's appeal, emphasizing that the duty payments were deemed provisional under Rule 9B, and previous judgments supported the provisional nature of the assessments. The identical appeal was also rejected based on the same discussions and analysis presented in the first appeal.