2004 (3) TMI 201 - AT - Central Excise

Summary

Issues:
1. Rejection of refund claim as time-barred due to lack of provisional assessment order.
2. Allegation of unjust enrichment.
3. Interpretation of Rule 9B of the Central Excise Rules regarding provisional assessment.
4. Dispute over whether the assessment was provisional or not.
5. Remand for fresh decision on the refund claim.

Analysis:
The appellant filed an appeal against the rejection of their refund claim on the grounds of being time-barred and unjust enrichment. The Commissioner (Appeals) held that the refund claim was rejected due to the absence of an order for provisional assessment under Rule 9B of the Central Excise Rules and the failure to demonstrate that the duty burden was not passed on to the customer, invoking the principle of unjust enrichment. The appellant argued that they had requested provisional assessment by writing to the Assistant Collector, but no action was taken by the revenue. They contended that the reliance on a previous Tribunal decision was unjustified as the circumstances differed from the present case.

The Revenue's position was that without a formal order for provisional assessment as required by Rule 9B, the assessment could not be considered provisional. However, the Tribunal noted that Rule 9B allows the assessee to request provisional assessment in writing, and the proper officer may direct such assessment after inquiry. In this case, the appellant's request for provisional assessment was not disputed by the Revenue, and the lack of action by the proper officer could not be held against the appellant. The Tribunal distinguished the present case from the precedent cited by the Revenue, emphasizing the specific request made by the appellant for provisional assessment.

The Tribunal concluded that the assessments in question should be considered provisional due to the appellant's request, despite the lack of formal action by the revenue. Therefore, the impugned order rejecting the provisional nature of the assessment was deemed unsustainable. The matter was remanded to the adjudicating authority for a fresh decision on the refund claim filed after finalizing the assessment. The appeal was disposed of by way of remand, allowing for a reevaluation of the refund claim in light of the provisional assessment aspect.