TMI Blog2002 (4) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... t's contention is that the duty was paid provisionally and the refund claim having been filed within a period of six months from the date of finalisation of provisional assessment, the same was within limitation. 2. After hearing Shri S.K. Roychowdhury, learned Advocate for the appellant and Shri A.K. Pandit, learned JDR for the Revenue, it is seen that the appellant vide his letter dated 28-10-94 addressed to the Revenue had mentioned that these transactions were on principal to principal basis and the payment of Service Tax appears to be not required under law. He, further, mentions that he has, however, paid Service Tax for all the months and asked for assessing the same provisionally. By another letter dated 10-6-97, the assessee as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eposit the actual amount payable for any particular month or quarter, as the case may be, the assessee may make a request in writing to the Central Excise Officer to make a provisional assessment of the tax on the basis of the amount deposited and the Central Excise Officer, may, on receipt of such request, order provisional assessment of tax and where the Central Excise Officer makes a provisional assessment, the provisions of Central Excise Rules, 1944 relating to provisional assessment, except so far as it relates to execution of bond, shall, so far as may be, apply to such assessment. 6. (5) Where an assessee under sub-rule (4) requests for a provisional assessment he shall file a statement giving details of the difference between t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of Section 11B. In a recent decision, the Tribunal in the case of International Security Organisation v. C.C.E., New Delhi reported in 2002 (144) E.L.T. 343 (Tribunal) = 2002 (49) RLT 36 (CEGAT-Delhi) has also held that the refund provisions of Service Tax are governed by Section 11B of Central Excise Act, 1944. As such, there is no dispute about the same. The only dispute relates to the question as to whether the assessment in the present case were provisional and if that be so, what would be the relevant date for the purposes of filing of a refund claim. Admittedly, the appellant had written a letter in the year 1994 to his jurisdictional Central Excise Officer for treating the assessment as provisional. Rule 6(4) requires ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment is ordered by the proper officer and not the date on which the duty was paid by the assessee pending Final Orders of the proper officer. It is also seen in the case of Alcatel Modi Net Works Systems v. Commissioner of Central Excise, New Delhi reported in 2000 (117) E.L.T. 522 (Tribunal), it has been observed that suo motu refund should be given by departmental authorities where refund arises due to finalisation of provisional assessment. As such, I am of the view that inasmuch as the appellant has applied within a period of 1½ months from the date of finalisation of the provisional assessment, the refund in question cannot be held to be as barred by limitation. 6. In view of the foregoing, I set aside the impugned Order and al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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