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TMI Blog1998 (3) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants under provisional assessment under Rule 9B. By his letter dated 30-10-1987, the said Superintendent of Central Excise informed the appellants that the Provisional Assessments have been finalised taking into account the Chartered Accountant s Certificate etc., furnished by them. He intimated therein that they should pay the Central Excise Duty of Rs. 3,425.83 by adjusting into their PLA. He further informed that on finalisation of the assessment, it is found that a sum of Rs. 35,844.68 becomes refundable to them for which a regular refund claim should be filed. After a protracted correspondence in the matter, the Superintendent in his letter dated 26-4-1994 informed the appellants that the amount of refund claim had already been rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per the directions of the Hon ble Tribunal after hearing the party on 25-3-1996. In his order, he came to the conclusion that since the duty paid on the GPs had been passed on to the buyers and relying on the decision of the Tribunal in the case of Vidula Chemicals Mfg. Industries Ltd. v. CCE, Calcutta - 1996 (82) E.L.T. 489 (T). He sanctioned the refund but ordered to credit the same to the Fund under Section 11B(2). 3. A perusal of the order shows that the Asstt. Commissioner did not consider the two decisions of the ERB NRB which he was directed to do in terms of the remand order of this Tribunal mentioned above. 4. In the impugned order-in-appeal, the Commissioner had held that all refund claims pending on the relevant date i. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correct rule applicable in this case. He further stated, due to compliance to this rule, the appellant had debited in their current account a sum of Rs. 3,425.83 as desired by the Superintendent who was the Proper Officer under Rule 173-I to finalise the assessment. He, then, argued that therefore the converse of this also equally true in this case - that is to say, that under the same rule when the Range Superintendent had found that certain amount of Rs. 35,844.68 had been paid in excess as duty, then according to the very said rule, they were also entitled to take credit in their current account of excess payments, on receipt of the assessment order of the Superintendent of Central Excise. However, instead of doing this, the Superintende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled, it was dealt with by the lower authorities as per law. 9. I have carefully considered these arguments as well as the facts on record. I find that the Lower Authorities have not disputed that the outcome of the finalisation of provisional assessment resulted in a position where an amount of Rs. 35,844.68 was found to have been paid in excess by the appellants. I find that the whole dispute arose out of the action of the original authority in crediting the same to the Fund under Section 11B. 10. After the perusal of both the Order-in-Original and Order-in-Appeal, l am surprised to find that the specific directions of this Tribunal in their remand order dated 20-10-1995/29-12-1995 by a Two Member Bench has not been complied with in i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) and (c) of sub-rule (1). The goods provisionally assessed under sub-rule (1) may be cleared for home consumption or export in the same manner as the goods which are finally assessed. Sub-rule (5) provides that when the duty leviable on the goods is assessed finally in accordance with the provisions of these Rules, the duty provisionally assessed shall be adjusted against the duty finally assessed, and if the duty provisionally assessed falls short of or is in excess of the duty finally assessed, the assessee shall pay the deficiency or be entitled to a refund, as the case may be". Any recoveries or refunds consequent upon the adjustment under sub-rule (5) of Rule 9B will not be governed by Section 11A or Section 11B, as the case may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal cited in this Tribunal remand order discussed above therefore it would not meet the interest of justice, if this appeal is summarily dismissed under proviso to Section 35B, particularly because the said proviso gives a discretion in the matter to this Tribunal to refuse to admit such an appeal. Therefore, I proceed to consider and pass orders on this appeal. 15. In view of discussions above, and taking into consideration all the facts and circumstances of the case, I set aside the impugned orders and allow the appeal with consequential relief. Since the amount of Rs. 35,844.68 as already been credited to Fund, necessary administrative measures as prescribed may be taken to retrieve the said amount at the earliest possible and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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