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TMI Blog2014 (6) TMI 450X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment in the case of the assessee. The learned counsel drawing attention to para 6 wherein, the submissions made by the appellant that they would not insist on provisional assessment and they would claim refund in case of excess payment and make payment to the Government if there is short payment and therefore they have no objection to the provisional assessement discontinuation have been recorded. This does not help the appellant at all. If they wanted provisional assessment, an order to that effect should have been insisted upon by them. The order passed by the Deputy Commissioner was an appealable order and in fact I find that it has become a consent order because of the submissions made by the appellant themselves. Under these circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals) erred in taking a view that the refund claim is barred by limitation. 3. He submits that the assessment has to be deemed to be provisional and the date for the purpose of Section 11B has to be taken as the date on which TNEB intimated the reduced price to the assessee. In this case the reduced price was communicated by the TNEB on 26-5-2009 whereas the refund claim was filed on 15-8-2009. While admitting that the clearances were made prior to the period of one year prescribed under Section 11B of the Act on payment of duty, he submits that the relevant date has to be taken as the date on which reduction in price took place and hence refund claim is not time-barred. The learned counsel relies upon the decision of the Hon ble High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eligible for refund. This decision was rendered in the case of CCE, Nagpur v. Oriental Explosives (P) Ltd. [2008 (222) E.L.T. 205 (Bom.)]. In this case, the Hon ble High Court considered the issue and clearly distinguished the facts of the case in Oriental Explosives from the facts of the case in Mauria Udyog Ltd. In para 11 of their order, Hon ble High Court observed that in the case of Mauria Udyog Ltd. relied upon by Revenue, the Apex Court held that when clearance of goods are not on provisional basis, any reduction of price at a later date could not be made foundation for seeking refund. Hon ble High Court clearly said that facts in the case before them were not similar to the facts in the case of Mauria Udyog Ltd. 5. As regards th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund in case of excess payment and make payment to the Government if there is short payment and therefore they have no objection to the provisional assessement discontinuation have been recorded. This does not help the appellant at all. If they wanted provisional assessment, an order to that effect should have been insisted upon by them. The order passed by the Deputy Commissioner was an appealable order and in fact I find that it has become a consent order because of the submissions made by the appellant themselves. Under these circumstances, the assessment in the case of the appellant cannot be considered as provisional or deemed provisional. 6. Therefore, the refund claim filed by the appellant for the purpose of limitation under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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