2008 (2) TMI 143

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..... e assessment is provisional or not is not at all relevant in this case, because when the refund claim has been filed within the time limit even if the assessment is final, one has to examine the refund claim - question of the assessment being final or provisional is not relevant where the refund claim has been filed within the time limit refund allowed
Dr. S.L. Peeran, Member (J) and Shri T.K. .....

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..... d in 2000 (118) E.L.T. 627 (T - LB) compliance with requirement of Rule 9B of Central Excise is required to be established before claiming refund on account of provisional assessment. Reliance was also placed on the decision of the Hon'ble Apex Court in the case of MRF Ltd. Vs. CCE Madras reported in 1997 (92) E.L.T 309 (SC) wherein it was held that fluctuation in prices subsequent to clearanc .....

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..... (154) E.L.T. 237 (Tri.- Del.) (ii) Utkal Polyweave Indus. Pvt. Ltd. Vs. CCE, Bhubaneswar 2001 (136) E.L.T. 818 (Tri.- Kolkata) 6. Further he argued that non-compliance of the procedure under Rule 9B is not decisive of the fact as to whether goods cleared are on provisional basis or not. He relied on the following case laws: (i) Rajiv Mardia vs. CCE 2001 (129) E.L.T. 334 (Tribunal - LB) 7. Ev .....

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..... ders vs. CCE, Meerut-I 2007 (207) E.L.T. 442 (Tri.-Del.) 8. He also pointed out that the decisions relied on by the Revenue are not applicable and can be distinguished. 9. On a very careful consideration of the issue, we find that in terms of the agreement between the respondents and the buyers, the price is subject to variation. In other words, the price was provisional and the goods were clear .....

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..... ges the differential duty due to the government. The same treatment has to be meted out to the respondent in terms of the various decisions of this Tribunal and the other Tribunal. The MRF decision of the Supreme Court has already been distinguished by the Tribunal in the case of Keltch Energies case and also in the case of Utkal Polyweave Indus. by the Calcutta Tribunal. We do not find any merit .....

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