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2015 (7) TMI 1197 - CESTAT NEW DELHIRefund claim - Section 11B of the CEA, 1944 - denial on the ground that there was no order from the competent authority in allowing payment of duty on provisional basis and therefore, the value assessed is not provisional and is final - Held that: - On perusal of Rule 9B of the erstwhile Rules and Rule 7 of the present Rules, it reveals that as far as the procedures are concerned, there is no change in the said Rules. In both the said Rules, there is no stipulation that provisional assessment can be resorted to by the assessee for a specified period. In absence of any specific stipulation/ prohibition prescribing for the time limit for which the provisional assessment shall be valid, the order dated 7.7.1989 allowing the provisional assessment by the Jurisdictional Central Excise Authorities will hold good for the disputed period, even if, the said period is governed under Rule 7 of the Central Excise Rules, 2002. Though the final price of goods has been settled between the appellant and its buyers, but in absence of acceptance of such final price by the Central Excise Authorities u/r 7 of the CEA, the refund application filed by the appellant is pre-mature. Thus, rejection of refund application on the ground that no permission has been granted for resorting to provisional assessment or the same is barred by limitation of time is not sustainable under the law. The refund application can only be filed upon finalization of assessment, which has not yet been done. Hence, after setting aside the impugned order, the matter is remanded back to the Original Authority for finalization of the provisional assessment and for passing necessary/ appropriate orders to that effect - appeal allowed by way of remand.
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