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TMI Blog2016 (9) TMI 1019X X X X Extracts X X X X X X X X Extracts X X X X ..... . The appellant submitted that when the assessments are provisional and such assessments are finalized in terms of Rule 9B of Central Excise Rules 1944 then the provisions of Section 11B are not applicable to such cases when the assessments are finalized. He further submitted that this issue is no more res integra and relied upon the judgment of the Hon’ble Supreme Court of India in the case of CCE vs. Mafatlal Industries Ltd. [1996 (12) TMI 50 - SUPREME COURT OF INDIA]. Therefore, in view of the same, the impugned order is set aside. - Decided in favour of appellant with consequential relief X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notices were issued to the appellant directing them to show-cause as to why the said refund claims should not be rejected as the clause of unjust enrichment would be attracted if refund is sanctioned. The appellant filed the reply to the show-cause notice and they have stated in their reply that their sale price is first fixed on deriving the provisional assessable value based on the previous quarter s admissible deductions. The final assessable value is arrived at based on the actuals of the quarter s admissible deductions. The difference between the provisional assessable value and the final assessable value is taken into consideration for determining whether a refund is due or a payment of differential duty is required to be made. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessments are provisional and such assessments are finalized in terms of Rule 9B of Central Excise Rules 1944 then the provisions of Section 11B are not applicable to such cases when the assessments are finalized. He further submitted that this issue is no more res integra. He relied upon the judgment of the Hon'ble Supreme Court of India in the case of CCE vs. Mafatlal Industries Ltd. 1997 (89) E.L.T. 247 wherein in para 95 the Court has observed as under: "95. Rule 9B provides for provisional assessment in situations specified in Clauses (a), (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-ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants also relied upon the following decisions: (i) CCE & ST Vadodara-II Vs. Panasonic Battery India Ltd. 2014 (303) E.L.T. 231 (Tri.-LB) (ii) Hindustan Zinc Ltd. Vs. CCE, Jaipur 2015-TIOL-2427-CESTAT-DEL (iii) CCE, Chennai Vs. T.V.S. Suzuki Ltd. 2003 (156) E.L.T. 161 (S.C) 4. On the other hand the learned AR reiterated the findings of the Commissioner. 5. After hearing the submissions of both the parties and after going through the decisions relied upon by the appellant, I am of the opinion that the issue is squarely covered in favour of the appellant and the decision of the Bombay High Court in the case of Standard Drum & Barrel Mfg. Co. Vs. CCE, Mumbai II as reported 2006 (199) E.L.T. 590 (Bom.) is no longer applicable to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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