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TMI Blog2001 (2) TMI 571X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant particulars in support thereof. The claim for refund arose on account of the fact that the appellants, under mistake of law and/or fact, had paid Central Excise duty on the bought out items cleared from their factory and used in installation "fire protection systems" in the premises of its customers. The Department accepted this position while approving the C/L on 29-3-1989, effective from 1-3-1988. A show cause notice was issued to the appellants asking them to show cause as to why the refund claim should not be rejected as time-barred as the same was submitted after expiry of six months from the date of payment. In his reply, the appellant contended that the assessments during the relevant period being provisional even at the time of filing the refund claim and in respect of which B-13 Bond was executed, the same was not hit by time-bar. The claim was, however, rejected by the Asstt. Collr. of Central Excise vide his Order dated 25-8-1995 on the ground that it was premature and advised the appellant to submit the same on finalisation of the provisional assessment . Being aggrieved by the said order, the appellant preferred an appeal with Commissioner (Appeals) who by hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that Rule 9B is an independent rule and which should not be conflicting with Section 11B in deciding the relevant date of filing refund claim . If we ignore the final assessment in deciding refund claim an absurd situation may arise. So in harmonious reading of the provisions of Rule 9B(5) and Section 11B it is only reasonable to hold that "refund claim" should arise only after the provisional assessment is finalised and adjustment thereof. Accordingly, the decision of the Assistant Commissioner is in accordance with law. We have perused the above observations in the context of the submissions made and arguments advanced on behalf of the appellants. We do not find any merit in the arguments of the learned Advocate for the reasons recorded by the Commissioner (Appeals) in the impugned order. Thus, we do not find any infirmity in the order challenged before us. Accordingly, we uphold the order impugned in toto. 6. In the result, the appeal is rejected. Sd/- (S.N. Busi) Member (T) 7. [Order per : Archana Wadhwa, Member (J)]. - I have gone through the order proposed by ld. Brother Dr. Busi. With respect to him, my views in the matter are different and as such a separa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an issue on account of which the assessment is not provisional. My answer to the above query is in the positive. The unamended provision of Section 11B, as rightly argued by the ld. Counsel lay down the maximum time-limit within which the claim filed by the assessee can be entertained. The same are to the effect that any assessee claiming refund may make an application before the expiry of six months (emphasis provided) from the relevant date. As admittedly the six months, in the present case had not expired by the time of filing of refund claim, the same cannot be treated to be either barred by limitation or having been filed before the finalisation of the provisional assessments. There is no debarring clause either in Section 11B or in Rule 9B debarring the assessees from filing the refund claim during the pendency of finalisation of provisional assessments. The said provisions only lay down the outer-limit within which the claim filed by them would be entertained. As such I am of the view that the refund claim filed during the pendency of the finalisation of the provisioinal assessments cannot be rejected on the ground of same being pre-mature. 12. In my views the fili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture having been filed before the finalisation of the assessments, the assessments had already been finalised and the period of six months had already been expired. In these circumstances the stand adopted by the Revenue i.e. first proposing to reject the claim as time-barred and when convinced that during that period the assessments were provisional to reject the claim as pre-mature is not in accordance with justice. As such I am of the view that the impugned orders are required to be set aside on the ground of the same having travelled beyond the show cause notice, I order accordingly and allow the appeal with consequential relief to the appellants. Sd/- (Archana Wadhwa) Member (J) DIFFERENCE OF OPINION Whether in the facts and circumstances of the case, the appeal is liable to be rejected as held by the Member (Technical) or the same is to be allowed as held by Member (Judicial). Sd/- (S.N. Busi) Member (T) Date : 14-12-2000 Sd/- (Archana Wadhwa) Member (J) Date : 13-12-2000 15. [Order per : Justice K. Sreedharan, President]. - On account of difference of opinion expressed by the Members of the Bench while passing Order No. M-1514/CAL/2000, dated 14-2- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim made by the party, has not been examined by the authorities below in the impugned orders. So, prima facie, the party cannot be given any specific relief by allowing the appeal. According to me, the matter has to go back to the jurisdictional adjudicating authority to find out the actual amount refundable to the party. 16.4 As stated earlier, the duty was paid by the appellant while the entire assessment was being made on provisional basis. When that Provisional Order of Assessment has not been finalised, no period of limitation can run against the appellant for denying them the benefit of refund. This statement is not disputed by either side before me. Even on the ground that the assessment has not been finalised, the adjudicating authority was not justified in rejecting their application on the ground that it is premature. The claim that has been put forth by the appellant should have been kept pending till the finalisation of the assessment proceedings. The Department had not called for any explanation from the appellant as to why the application is to be rejected on the ground of its having been filed premature. Department was not justified in rejecting the application ..... X X X X Extracts X X X X X X X X Extracts X X X X
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