TMI Blog2018 (9) TMI 1566X X X X Extracts X X X X X X X X Extracts X X X X ..... ords of the case are very clear that the assessments were provisional for not only the impugned period but for subsequent periods also. A show-cause notice dated 15.7.2007 was issued to the appellants and the show-cause notice cites so many letters written by the appellants to show that the assessments were provisional - the Order-in-original also refers to the assessment being provisional; therefore, it is evident that the assessments were provisional. Lower authorities have also taken a plea that assessments are provisional for the purpose of valuation and not for classification - Held that:- The provisional assessment has to be treated as provisional for all purposes and not necessarily in respect of particular grounds considered. From the available records of the case, it is not clear as to whether the assessments have been finalised or not. In the absence of the same, it is to be understood that the assessments are provisional, therefore, the refund claim made by the appellants is not hit by limitation. Moreover, there was no reason or requirement for the appellants to file a refund claim as grant of refund should be a normal process on finalization of the assessments. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same is finalized as held by Madras High Court in Indian Tyre and Rubber Company: 1997 (94) ELT 495 (Mad.) (v) The appellants did not dispute the classification and provisional assessment was only for valuation and this issue not disputed cannot be raised at this stage. 2. The learned counsel for the appellants has submitted that it is incorrect to say that the assessments were not provisional; in fact, the Order-in-Original records categorically in para 4 that the assessments were made provisional and the duty was not paid under protest. The provisional assessment was for only valuation not for classification. The counsel for the appellants contended that the Department has issued a show-cause notice No.V/85/117/3/2007-EA dated 15.10.2007 proposing to finalise assessment from 2003-04 to 2006-07; therefore, the Department cannot allege that the assessments were not provisional. The learned counsel also submitted that provisional assessment cannot be provisional for a particular issue and the appellants were well within their rights to claim additional grounds at time of finalisation. It has been held by the Tribunal in the case of Swastik Fragrances vs. CCE: 2000 (121) ELT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and wanted to enquire into against the Government of India undertaking i.e., ITI Limited is not palatable, especially because the customer or purchaser of tele equipments from the respondent/assessee ITI Limited was none other than a Central Government Department or BSNL. 5. Heard both sides and perused the records. As seen above, the Department rejected the refund claim by the appellant on the ground that the assessment was not provisional and even if it was provisional, refund is premature and that the appellants did not pay duty under protest; the appellants did not produce proof that the equipment manufactured by them were same as those covered by the Tribunal‟s order cited above and they have not given proof that they have not passed on the incidence of duty. It is seen that the appellants in reply to the show-cause notice that M/s. BSNL had placed two purchase orders on the appellants for supply of goods i.e., Integrated Fixed Wireless CDMA 2000 IX Terminals supporting voice, voice band data up to 14.4 kbps in circuit mode and subscriber call charge meter (home meter) with patch panel antenna, RF Feeder cable, data cable, connectors and accessories model LSP-340 E a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed above, the Order-in-original also refers to the assessment being provisional; therefore, it is evident that the assessments were provisional. 5.2 The lower authorities have also taken a plea that assessments are provisional for the purpose of valuation and not for classification. We find that as cited above, it was held in so many cases that provisional assessment has to be treated as provisional for all purposes and not necessarily in respect of particular grounds considered. This Bench in the case of IJM Gayatri Joint Venture (supra) has observed that once the assessment is provisional for a particular reason, it will be provisional for any other reason. In other words, the assessment which is provisional is provisional for all purposes . once the assessment is provisional, there is no question of time bar and the short-payment can always be recovered at the time of finalization. Applying the ratio of the judgment, it is held that the same is applicable to refund also. As held by the Tribunal in LM Glassfibre (supra), therefore examination of all facts including classification of goods requires to be undertaken at the time of finalization of provisional assessment. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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