Provisional assessment and open remand: refund claim remains premature until finalisation on the correct price basis.

Where the assessment at clearance was accepted as provisional, the original authority was required to finalise it on an open remand, and the appellate authority could not direct acceptance of the assessee's declared prices without proper riders. Because the record did not establish that the revised lower prices were the final prices fixed by the Oil Companies, the remand had to remain open for finalisation on that basis. Any refund claim arising from the provisional assessment was premature until final assessment was completed. The earlier appellate order on the same goods had already attained finality and remained binding to that extent.

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Issues: Whether the remand direction to the original authority had to be an open remand, and whether a refund claim could be entertained before finalisation of the provisional assessment.

Analysis: The assessment made at the time of clearance was accepted by both sides to be provisional. In such a situation, the original authority was competent to finalise the assessment, but the lower appellate authority could not impose a condition that the authority must accept the prices to be declared by the assessee without appropriate riders. Since the record did not show that the revised lower prices had been established as the final prices declared by the Oil Companies, the remand had to remain open so that finalisation could be done on the basis of the prices fixed by the Oil Companies. Once provisional assessment remained unfinished, any refund claim arising out of it was premature and could be considered only after finalisation. The earlier order of the Commissioner (Appeals) on the same goods had already become final and was binding to that extent.

Conclusion: The conditional remand in the impugned order could not stand, and refund could be considered only after the assessment was finally completed.

Final Conclusion: The appeal succeeded, the impugned order was set aside, and the assessee was left at liberty to seek refund only if final assessment resulted in a lower price basis.

Ratio Decidendi: Where assessment is provisional, remand for finalisation must be open and any refund claim remains premature until the assessment is finally completed.

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