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TMI Blog2009 (6) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessments, 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. - E/1071/2008 - 1038/2009 - Dated:- 16-6-2009 - S/Shri T.K. Jayaraman, Member (T) and M.V. Ravindran, Member (J) Shri V.J. Sankaram, Advocate, for the Appellant. Ms. Joy Kumari Chander, Jt. CDR, for the Respondent. [Order per: M.V. Ravindran, Member (J)]. - This Appeal is directed against the Order-in-Appeal No. 63/2003(H-III)-C.E., dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that it was for the appellants to approach and seek for provisional assessment during the relevant period. Having not done so, he cannot claim refund as the assessments were not provisional. 5. We have considered the submissions made at length by both the sides and perused the records. The Commissioner (Appeals) while arriving at the conclusion that the appeal filed by the appellants need to be rejected, had given the following findings:- "6. I have carefully gone through the issue and observed that, the Deputy Commissioner, in his findings while passing the order, stated that.... "Here it is very pertinent to note that the issue of provisional assessments in the case of the assessees has been dealt at length in the past having th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment is repugnant to the provisions made available under Section 11B of Central Excise Act, 1944." 7. From the above findings it is very clear that the appellants were not requested for provisional assessments after finalizing the provisional assessments upto the year 1993-94 by sanction order C. No. V/85/18/37/95-R dated 17-6-97. In this regard, I observed that the Hon'ble CEGAT, in the case of M/s. Hindustan Wires Ltd. v. CCE, Delhi-II reported in 2003 (151) E.L.T. 679 (Tri. - Del), has held that. "Refund due - Reduction in prices subsequent to clearance of goods - Assessee having knowledge at the time of clearance that the prices of goods were provisional - Formal request for provisional assessment never made in terms of Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appears to have been taken on the flimsy technical grounds. Even though the Commissioner (A) has referred to the Samrat (supra) case relied on by the learned Advocate, in the finding portion she has completely ignored the same. In the Samrat case, the Hon'ble Apex Court has held that when the assessee maintains Personal Ledger Account (PLA), there is no need for a Bond under Rule 9B even in cases of provisional assessment. In any case, when the appellant filed the RT-12 returns, it was indicated therein that the assessment was provisional. In spite of this fact, the lower authorities have denied provisional assessment. This does not appear to be correct. In TVS Motor Co. Ltd. case edited supra, it was held that permission for provisional as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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