2016 (9) TMI 1347 - AT - Central Excise

Refund claim - provisional assessment - rejection of refund on the ground of time limitation as refunds have been filed on 3-11-2008 for the payments made in 2005-2006 and 2006-2007 - rejection also on the ground that as the assessments were still provisional and have not been finalized, the refund claim filed by the assessee was premature - Held that - admittedly during the relevant period, the assessment were provisional. However, I find the stand of the Assistant Commissioner is self-contradictory inasmuch as on one hand he is rejecting the refund claim as premature, and on the other, he is rejecting the same on the point of limitation - The appellant s apprehension that the claim may not be again rejected by the adjudicating authority on the issue of time-bar is not well-founded inasmuch as the claim is already filed and is deemed to have been pending before the original adjudicating authority and as such, there is no requirement for the assessee to file new refund claim so as to raise the issue of time-bar - appeal allowed by way of remand.

Summary

Issues:
1. Validity of refund claim filed by the appellant.
2. Rejection of refund claim on the grounds of prematurity and limitation.
3. Dispute regarding provisional assessments and finalization of assessments.

Analysis:
1. The appellant, engaged in supplying bulk explosives, continued to supply goods to a company after the contract expiry at the agreed-upon price. The assessments for the period were provisional due to the absence of a valid agreement between the parties. The appellant filed a refund claim after the price of goods was revised, which was rejected by the Assistant Commissioner citing prematurity and limitation issues.

2. The Commissioner (Appeals) upheld the rejection of the refund claim on the grounds of prematurity as the assessments were still provisional and not finalized. However, the rejection on the basis of limitation for the payments made in previous years was also maintained.

3. The Tribunal noted that the assessments were indeed provisional during the relevant period, and the stand of the Assistant Commissioner was contradictory in rejecting the claim both as premature and time-barred. It was established that when assessments are finalized after being provisional, refund claims cannot be rejected as time-barred. The Tribunal informed that the assessments were finalized on a specific date, allowing the refund claim to be decided in light of the final assessment.

4. The Tribunal clarified that the appellant's concern about the claim being rejected again on the basis of time-bar was unfounded. Since the claim was already filed and pending before the original adjudicating authority, there was no need for the appellant to file a new refund claim to address the time-bar issue. The appeal was disposed of by way of remand to address the issues raised and ensure a fair decision based on the finalized assessments.

This detailed analysis of the judgment highlights the key issues addressed by the Tribunal regarding the validity of the refund claim, rejection on grounds of prematurity and limitation, and the resolution of the dispute concerning provisional assessments and finalization.