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TMI Blog2013 (6) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... f excess amount duty would arise at all?" 2. The short fact leading to preferring this appeal is as follows : The assessee/respondent manufactures dutiable goods and because of exigency the goods were allowed to be removed from the factory gate and then duty was paid on the basis of the provisional assessment. In spite of repeated demands and requests, no final assessment order was passed. It is the case of the assessee/respondent that in certain instances of sales, the assessee is not liable to pay the duty or is liable to pay lesser duty because of the price variation of the products. In certain cases on the basis of self-assessment the respondent/assessee has paid the duty more than what was payable earlier as the products could be sol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation No. 45/99-C.E. (N.T.), dated 25th June, 1999, an amendment has been made in sub-rule (5) of Rule 9B by adding a proviso thereto. The effect of proviso is that even after finalization of the provisional assessment under Rule 9B(5), if it is found that an assessee is entitled to refund, such refund shall not be made except in accordance with the procedure established under sub-Section (2) of Section 11B of the Act. 5. The aforesaid legal position has been accepted by subsequent decision of the Supreme Court in the case of Commissioner of Central Excise, Chennai v. T.V.S. Suzuki Ltd., reported in 2003 (156) E.L.T. 161 (S.C.). 6. Mr. Khaitan, learned Senior Advocate appearing for the respondent/assessee, submits that the learned Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cedure established under sub-section (2) of section 11B of the Act.] [ [6] Notwithstanding the provisions of self-assessment in this rule, in cases of provisional assessment, the final assessment shall be made by the proper officer.]" 10. The aforesaid insertion of the proviso makes it mandatory for final assessment as provided under Section 11B in the matter of grant of refund. 11. This aforesaid position of law has been accepted by the Supreme Court in TVS Suzuki's [supra]. In paragraph 3 of the said judgment, it has been noted as follows : "In order to get over the situation arising under Mafatlal Industries Ltd. [supra] vide Notification No. 45/99-C.E. (N.T.), dated 25-6-1999, an amendment was made in sub-rule (5) of Rule 9B by addi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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