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TMI Blog2011 (3) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... an assessee for refund of excess duty paid due to finalization of assessment - There is no justification for reading the provision of Section 27 into Section 18 of Customs Act, 1962 - Hence, the time limit prescribed u/s 27 in respect of refund claim arising out of provisional assessment may not alter the specific provisions of Section 18 - Decided in favour of assessee. - C/950/2005-Cus - C/128/2011(PB) - Dated:- 16-3-2011 - S/Shri S.S. Kang, M. Veeraiyan, JJ. REPRESENTED BY : Shri B.I. Narsimhan, Advocate, for the Appellant. Shri Sonal Bajaj, DR, for the Respondent. [Order per : M. Veeraiyan, Member (T)]. This is an appeal against the order of the Commissioner (Appeals) No. CC(A)/348/ACU/Delhi-I/2005 dated 30-8-2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. reported in 2008 (231) E.L.T. 36 wherein it has been categorically held that up to 12-7-2006, the Revenue was bound in law to make the refund without any claim being required to be made by an assessee for refund of excess duty paid due to finalization of assessment. He also relies on the decision of the Larger Bench of the Tribunal in the case of CC, Kandia v. Hindustan Zinc Ltd. reported in 2009 (91) RLT 255 (CESTAT-LB) = 2009 (235) E.L.T. 629 (Tri.-LB) which followed the decision of the Hon ble Gujarat High Court in the case of Hindalco Industries Ltd. and held that refund claim on finalization of provisional assessment was to be made without claim being submitted by assessee in terms of Section 27. He also submits that the department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a mechanism to regularise the payments of duty short levied and interest thereon and duties that are to be refunded on finalization of provisional assessment and in this context in the report of the Standing Committee on Finance it has specifically been noted that this amendment became necessary because Section 18 of the Act which provides for provisional assessment of duty presently (i.e. up to 12-7-2006) does not provide for various issues arising from the finalization of provisional assessment. Thus it becomes apparent that the amendment in question is substantive in nature when one finds that various provisions have been inserted which were not forming part of the original Section 18 of the Act as it stood up to 12-7-2006. It is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21. Therefore, on both counts, in light of the authorities referred to hereinbefore, and on interpretation of provisions of Section 18 of the Act, on finalisation of assessment if any excess duty is found to have been paid at the time of provisional assessment Revenue is bound in law to make the refund without any claim being required to be made by an assessee. This would be the position in law upto 12-7-2006 and not thereafter. 7. In other words, it has been held that prior to 13-7-2006 on finalization of provisional assessment, the department was bound to refund excess duty paid by the assessee without any claim to be preferred by the assessee. It is also held categorically that there is no justification for reading the provision of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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