2004 (9) TMI 550 - AT - Central Excise

CESTAT sets aside lower orders, emphasizes compliance with Rule 9B, and directs reassessment.

The Appellate Tribunal CESTAT, Mumbai allowed the appeals, setting aside lower authorities' orders on finalizing assessments under appeal. Emphasizing ... Refund - Provisional assessment Issues:Finalization of price lists filed by the appellant, rejection of refund claims, confirmation of demands, provisional assessment, adjustment of duty, entitlement to refund, relevant date for finalization of duty, application of Section 11A of the Central Excise Act, Supreme Court judgment on refunds, compliance with Rule 9B, limitation for refund applications, Circular issued by the Board.Analysis:The appeal before the Appellate Tribunal CESTAT, Mumbai revolves around the finalization of price lists submitted by the appellant. The orders under scrutiny include various appeals and orders, each detailing the rejection of refund claims and confirmation of demands by different authorities. The Tribunal notes that the finalization of assessments for the period 1991-1995 was disputed, leading to appeals that were settled by the Tribunal in 2000. It emphasizes that provisional assessment remains provisional until finalized, as per Rule 9B, which governs the adjustment of duty based on final assessment. Section 11A of the Central Excise Act determines the relevant date for finalizing duty, and the issue of refunds post provisional assessment is clarified by a Supreme Court judgment in the case of CCE v. Allied Photographics India Ltd.The Tribunal concludes that the lower authorities' orders on finalizing assessments when matters are under appeal are not permissible in law. It highlights that compliance with Rule 9B and the Supreme Court judgment, along with the absence of limitation issues, obviates the need for a separate refund application under Section 11B. The Board has issued a circular in line with the Supreme Court's ruling. Consequently, the Tribunal sets aside the orders and directs a remand to the Assistant Commissioner to reassess the total refundable or demanded amounts, considering payments made up to the reassessment date.In summary, the Tribunal allows the appeals as remand to the original authority for recalculating the demands and refunds based on the revised assessment. The judgment underscores the importance of following statutory provisions, judicial precedents, and circulars issued by the Board in matters of duty assessment, refund entitlement, and procedural compliance.