TaxTMI 
TaxTMI 
2018 (9) TMI 1566
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.... have filed a refund claim on 9.10.2007 for an amount of Rs. 7,33,29,913/- claiming to be the excise duty paid by them on the goods viz., IFWT integrated fixed wireless terminals cleared by them during the years 2003-04 and 2004-05. They have filed the refund claim on the basis of the CESTAT‟s Bangalore Final Order No.937/2006 dated 17.5.2006 in respect of appellants themselves wherein it was held that IFWT is liable for classification under the Customs Tariff Heading 8525.2017 following the ratio of Bhagyanagar Metals Ltd.: 2004 (117) ECR 28 (Tri.-Mum.) and Tata Teleservices : 2006 (194) ELT 11 (SC). The Assistant Commissioner of Central Excise vide Order-in-Original No.23/2008 (R) dated 29.2.008 rejected the refund claim. The Commis....
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....t 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 375 (T) that provisional assessment has to be treated as provisional for all purposes and not necessarily in respect of particular ground considered. Similar was the view held by the Tribunal in case of IJM Gayatri Joint Venture: 2008 (231) ELT 683 (T), which was maintained by the Supreme Court in 2016 (336) ELT A131 (SC); similar judgment was given by the Tribunal in case of LM Glassfibre (India) Pvt. Ltd.: 2009 (235) ELT 146 (Tri.-Chennai). 2.1 The learned counsel also submitted that the amounts were paid as ....
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....not acceptable. 4. The learned counsel for the appellants at this juncture have submitted that the Hon‟ble High Court of Karnataka in their order CEA No.30/2017 and No.62/2017 C/W CEA No.66/2017 have in their own case while rejecting the Revenue‟s appeals have observed that the very fact that the central Excise Department made an allegation of unjust enrichment 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 clai....
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....s model LSP-340 E, as ordered by BSNL in their purchase orders and a request to the Stores Division for issue of the imported IFWTs were made on "Multiple Stores Requisition" forms. The said IFWT were cleared after the same were subjected to provisional assessment vide provisional invoice copies of which was submitted along with subject refund claim. In view of the above, it is seen that the appellants have submitted the documentary proof that the goods cleared by them were manufactured out of the imported items or equipments. Once the appellants have submitted the details of the same, the department could have well verified the claim instead of simply brushing aside the claim saying that the appellants did not prove that the imported equip....
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....nt 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 refund claim of the appellants is to be considered at the time of finaliza....