2011 (5) TMI 181 - AT - Central Excise

Order-in-Appeal - Claim of refund - Provisional assessment - The impugned order passed by the lower appellate authority is self-contradictory inasmuch as he has directed the adjudicating authority to take a decision on merit as per law based on a final analysis of the assessees invoice/accounts and on the other hand he states that the finalization of provisional assessment need not be disturbed as there is no dispute about the quantum of final duty payable and claim of refund - The Department has rightly claimed that without going into the issue on finalization of the provisional assessment afresh, the refund cases cannot be decided afresh on merits - Hence, set aside the impugned Order-in-Appeal and remand both the appeals to the original authority for fresh decision

Summary

Issues: Appeal against lower appellate authority's order on finalization of provisional assessment and claim for refund.

Paragraph 1: The Appellate Tribunal CESTAT, CHENNAI, consisting of Ms. Jyoti Balasundaram and Dr. Chittaranjan Satapathy, heard arguments from Shri C. Dhanasekaran, representing the Appellant, and Shri K.S. Venkatagiri, Advocate for the Respondent. The Department appealed against the lower appellate authority's order, arguing that the Commissioner (A) failed to consider the Department's plea to set aside the provisional assessment finalization order before ordering meticulous verification of invoices. The Commissioner (A) had required the Department to file their version of finalization of provisional assessment, which was done, but the Commissioner (A) did not seem to have considered the Department's appeal and the report filed as required.

Paragraph 2: The Department contended that the Commissioner (A) incorrectly stated that there was no dispute about the quantum of final duty payable and claim of refund, despite the Department having assailed the provisional assessment finalization order on various grounds. The Tribunal found substance in the Department's argument, noting that the lower appellate authority's order was self-contradictory as it directed a decision on merit based on a final analysis of the assessees' invoices/accounts while simultaneously stating that finalization of provisional assessment need not be disturbed due to no dispute on duty payable and refund claim. The Tribunal agreed with the Department that without revisiting the finalization of provisional assessment, refund cases cannot be decided afresh on merits.

Paragraph 3: Consequently, the Tribunal set aside the Order-in-Appeal and remanded both appeals to the original authority for a fresh decision concerning the finalization of provisional assessment and the claim for refund. Both appeals were allowed by way of remand, emphasizing the interlink between finalization of provisional assessment and refund claims, necessitating a comprehensive reconsideration by the adjudicating authority.