2009 (6) TMI 538 - AT - Central Excise

Refund- Limitation- the appellants herein submitted a refund claim to the adjudicating authority for refund of the amount finalized by the authority on completion of provisional assessment. The adjudicating authority after giving an opportunity of personal hearing to the appellants rejected the refund claim as time barred under the provisions of Central Excise Act, 1944. Aggrieved by the said order, the appellant preferred an appeal before the Commissioner (Appeals). The Commissioner (Appeals) also came to the same conclusion. Held that- the assessments were provisional and on finalization of such assessments, the appellants are eligible for refund which has been claimed by him. Since the assessments were provisional, it cannot be said that the refund claim is time barred. In view of the foregoing reasons, we are of the view that the impugned order is unsustainable and liable to be set aside and we do so. The appeal filed by the appellant is allowed with consequential relief if any.

Summary

Issues:
Refund claim rejection as time-barred under Central Excise Act, 1944 due to non-provisional assessments.

Analysis:
The appeal was against the Order-in-Appeal No. 63/2003(H-III)-C.E., dated 12-6-2003, passed by the Commissioner of Customs and Central Excise (Appeals), Hyderabad. The appellants submitted a refund claim for the amount finalized by the authority after provisional assessment. The claim was rejected as time-barred under the Central Excise Act, 1944. The Commissioner (Appeals) upheld this decision, stating that the assessments were not provisional during the disputed period from 1-4-1994 to 31-3-1995. The appellant argued that the assessments were indeed provisional, pointing to remarks by the Range Superintendent on the RT-12 returns.

The Commissioner (Appeals) emphasized that the appellants did not request provisional assessments during the relevant period and failed to follow the necessary procedures for provisional assessment. The Tribunal's previous Final Order No. 464/2008 highlighted that the assessments were provisional for the period in question. The Tribunal found that the assessments were provisional based on the Range Superintendent's remarks and the appellant's submission of finalized RT-12 returns. The Tribunal noted that denial of provisional assessment was unjustified and based on technical grounds, as the necessary procedures were not followed despite indications of provisional assessment on the RT-12 returns.

The Tribunal concluded that the appellant could reasonably believe the assessments were provisional based on the Range Superintendent's endorsements. The Tribunal held that the assessments were indeed provisional for the period in question, making the appellant eligible for the refund claimed. The Tribunal set aside the impugned order, allowing the appeal with consequential relief. The operative portion of the order was pronounced on 16th June 2009.