2004 (9) TMI 495 - AT - Central Excise

Summary

Issues:
Claim for refund of excess duty paid on provisional basis.

Analysis:
The judgment revolves around the rejection of the appellant's claim for a refund of excess duty paid concerning goods assessed on a provisional basis. The appellant, during 1995-96, was involved in clearing yarn produced by them from their factory to their depots and selling it, with duty payment being provisional. The jurisdictional Superintendent of Genital Excise informed the appellant about the liability to pay additional duty exceeding Rs. 26 lakhs, which the appellant paid on 31-3-1997 under protest. A refund claim was subsequently filed by the appellant, which was rejected on the grounds that the original assessment was not contested.

The appellant argued that the assessment for 1995-96 remained provisional as no finalization order had been passed by the competent authority. They contended that the payment made on 31-3-1997 should be considered provisional, and there was no necessity to file an appeal, citing the decision in the case of Liberty Enterprises v. C.C.E., New Delhi - 2000 (120) E.L.T. 434 (Tri.).

Upon review of the records and hearing the arguments, the Tribunal acknowledged that provisional assessment must be finalized before any duty demand can be made. The order dated 18-3-1997 by the Superintendent was not a finalization order as the Superintendent lacked the authority to finalize provisional assessments. Therefore, the Tribunal agreed with the appellant that the payment of over Rs. 26 lakhs made on 31-3-1997 should be considered provisional, with its adjustment dependent on the finalization outcome, aligning with the stance taken in the Liberty Enterprises case.

Consequently, the Tribunal ruled that the matter should be sent back for the finalization of the provisional assessment and the issuance of an order by the competent authority. Thus, the impugned order was set aside, and the case was remitted to the jurisdictional competent authority for the finalization of the provisional assessment. The appeal was allowed by way of remand.