9911796707
TMI Blog2023 (3) TMI 1547X X X X Extracts X X X X X X X X Extracts X X X X ..... ent was provisional and thereafter it was finalized which was undisputed and accepted by the Commissioner (Appeals) in his order. The refund was filed within one year from the date of finalization of assessment. In these facts, it is found that when the assessment is provisional, it cannot be said that the duty which was paid during the provisional assessment was a final payment of duty. Final payment of duty is confirmed as and when the assessment of Bills of Entry is finalized. Therefore, the date of finalization of bills of entry should be reckoned as the actual date of payment and refund filed within one year from finalization of assessment to be treated as refund claim filed within one year. This issue has been considered in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accordingly, the impugned orders are set-aside and the appeals are allowed. - HON BLE MR. RAMESH NAIR, MEMBER (JUDICIAL) For the Appellant : None For the Respondent : Shri G. Kirupanandan, Assistant Commissioner (AR) ORDER RAMESH NAIR: These appeals are directed against the order-in-appeal passed by Commissioner (Appeals) which are impugned orders in the present case. Learned Commissioner (Appeals) has upheld the rejection of refund claims under Notification No. 102/2007-Cus dated 14.09.2007 on the ground of time-bar as the refund claims were filed after one year from the date of payment of Customs duty. 2. Shri Rahul Gajera, learned Counsel appearing on behalf of the appellants submits that initially the Bills of Entry were assessed pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D has to be filed within one year from the date of payment. However, in the present case the assessment was provisional and thereafter it was finalized which was undisputed and accepted by the Commissioner (Appeals) in his order. The refund was filed within one year from the date of finalization of assessment. In these facts, I find that when the assessment is provisional, it cannot be said that the duty which was paid during the provisional assessment was a final payment of duty. Final payment of duty is confirmed as and when the assessment of Bills of Entry is finalized. Therefore, the date of finalization of bills of entry should be reckoned as the actual date of payment and refund filed within one year from finalization of assessment to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication before the date of such finalization, in terms of Explanation-II appended to Section 27 ibid, providing the time limit of six months for filing refund claim, in case of provisional assessment, from the date of adjustment of duty after the final assessment thereof. However, in view of the Circular dated 29-7-2010 issued by the CBEC, the refund application was filed by the appellant on 9-9-2010 i.e. before finalization of assessment, which was admitted for consideration by the refund sanctioning authority. The refund application was dismissed on the ground that the same was filed after the prescribed time limit of one year from the date of payment of duty. 8. The applicability of Section 27 ibid to determine time period in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in above terms. From the above decision it can be seen that identical issue involved in the present case and the ratio of the above decision is clearly applicable to the present case. 5. As regards the submission of learned Authorised Representative and his reliance on the judgment of Bombay High Court in the case of CMS Info Systems Limited (supra) and Chennai bench decision in the case of Tranasia Bio-Medicals Limited (supra), I find that in both the cases there was no assessment provisional and thereafter final assessment, therefore, ratio of decisions is not applicable. Accordingly, in my considered view the refund filed is well within the time as prescribed under Notification No. 102/2007-Cus and refund is not time-barred. Accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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