TMI Blog2009 (3) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... learances of watches and parts made by the appellants during the year 1994-95 without their having to satisfy the authorities that such refund would not entail unjust enrichment of the assessee - E/49/2002 - 319/2009 - Dated:- 24-3-2009 - Ms. Jyoti Balasundaram, Vice-President and Shri P. Karthikeyan, Member (T) Shri R. Raghavan, Advocate, for the Appellant. Shri V.V. Hariharan, Jt. CDR, for the Respondent. [Order per : P. Karthikeyan, Member (T)].- The appellants M/s. Titan Industries Ltd., Watch Division, Hosur manufactured and cleared watches and watch parts in wholesale paying excise duty leviable on their end consumer price (ECP, sale price) following provisional assessment. Such goods similarly stock transferred by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund arose pursuant to finalization of provisional assessment. The relevant statutory provisions contained in Rule 9B at the material time read as follows:- "Rule 9B Provisional assessment to duty - (1)................ (5) When the duty leviable on the goods is assessed finally in accordance with the provisions of these rules, the duty provisionally assessed shall be adjusted against the duty finally assessed, and if the duty provisionally assessed fails short of, or is in excess of the duty finally assessed, the [assessee] shall pay the deficiency or be entitled to a refund, as the case may be". The Tribunal in the case of Shriram Pistons . Rings Ltd. v. Commissioner of Central Excise, Ghaziabad - 2003 (152) E.L.T. 359 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported in 1997 (89) E.L.T. 247 (S.C.) made the following observations: 95 Rule 98 provides for provisional assessment in situations specified in Clauses (a), (b) and (c) of sub-rule (1). The goods provisionally assessed under sub-rule (1) may be cleared for home consumption or export in the same manner as the goods which are finally assessed. Sub-rule (5) provides that "when the duty leviable on the goods is assessed finally in accordance with the provisions of these Rules, the duty provisionally assessed shall be adjusted against the duty finally assessed, and if the duty provisionally assessed falls short of or is in excess of the duty finally assessed, the assessee shall pay the deficiency or be entitled to a refund, as the case may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment of clearances in the year 1994-95 vide Order-in-Original No. 109/96 dated 28-9-1996, the refund due was not sanctioned. The assessee was forced to file a claim for the excess duty paid, in October 1999. This is not a claim independent of the issues involved in provisional assessment and so governed by Section 11B. We find that under various instructions issued by the CBEC, for example, Circular No. 288/4/97-CX., dated 14-1-1997 and Circular No. 382/15/98-CX., dated 19-3-1998, the field officers were directed to finalize provisional assessment within three months/six months. At present the relevant rule provides that provisional assessment should be finalized within six months of ordering it and in cases where such finalization is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities that the appellants had claimed amount of each abatement based on a percentage of ECP ascertained considering the total sales of the outlets and expenditure under each head such as freight and discount, instead of ascertaining the expenses incurred by the out lets relatable to the clearances by the appellant (Hosur Division) and the applicable percentage, we find that the authorities have taken a legally correct stand. Accordingly we allow the appeal by way of remand for allowing the refund after ascertaining the eligible amount as above. The appellants shall be allowed an effective opportunity for presenting their case by the original authority before taking a fresh decision. The appeal is disposed of. (Operative portion of the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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