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TMI Blog2023 (11) TMI 1326X X X X Extracts X X X X X X X X Extracts X X X X ..... TAT AHMEDABAD] , wherein it was held that ' 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 be treated as refund claim filed within one year.' Relying on the aforesaid decision, in the case of M/s. Bharat Ship Breaker Corporation, the appeals are allowed. - HON'BLE MEMBER (TECHNICAL), MR. RAJU For the Appellant : Shri Rahul Gajera, Advocate Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e refund claim of SAD 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 finalizat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... file the refund application 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal is disposed of 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 Authorized 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 ti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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