Provisional assessment refund depends on statutory compliance; pending finalisation alone does not defeat refund when delay is departmental.

Refund linked to provisional assessment is maintainable only where the statutory procedure for provisional assessment has been followed; a price variation clause in purchase orders does not by itself make an assessment provisional. On that basis, refund for the period 1-4-1997 to 16-4-1998 was held inadmissible because compliance with Rule 9B was absent. By contrast, where refund was claimed for supplies to IOCL during a period when provisional assessment was pending finalisation, and the delay in finalisation was attributable to the department before the assessment was later finalised, refund could not be refused merely as premature. The refund for that later period was allowed to stand.

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Issues: (i) Whether refund for the period from 1-4-1997 to 16-4-1998 could be granted on the basis of a price variation clause when the procedure for provisional assessment under Rule 9B had not been complied with; (ii) Whether refund for supplies made to IOCL for the period from 1-1-2001 to 31-3-2001 could be allowed when the assessment was pending finalization and was later finalized.

Issue (i): Whether refund for the period from 1-4-1997 to 16-4-1998 could be granted on the basis of a price variation clause when the procedure for provisional assessment under Rule 9B had not been complied with.

Analysis: The refund claim was filed only on 6-3-2003, while the application for provisional assessment was made only on 17-4-1998. For the earlier period, the assessment could not be treated as provisional merely because the purchase orders contained a price variation clause. Compliance with the procedure prescribed for provisional assessment was absent for that period.

Conclusion: The refund for the period from 1-4-1997 to 16-4-1998 was not admissible and the order of the original authority rejecting that part of the claim was restored.

Issue (ii): Whether refund for supplies made to IOCL for the period from 1-1-2001 to 31-3-2001 could be allowed when the assessment was pending finalization and was later finalized.

Analysis: The refund was rejected below only on the ground that the provisional assessment had not yet been finalized. The record showed that finalization had been sought, the delay in finalization was on the departmental side, and the assessment was later finalized. In these circumstances, there was no reason to deny the refund on the ground of prematurity.

Conclusion: The refund for supplies made to IOCL for the period from 1-1-2001 to 31-3-2001 was admissible and was allowed to stand.

Final Conclusion: The appeal succeeded only in part, with the refund disallowed for the earlier period but sustained for the IOCL supplies for the later period.

Ratio Decidendi: A refund linked to provisional assessment is maintainable only where the statutory procedure for provisional assessment has been complied with, whereas a refund cannot be denied merely because finalization is pending when the delay is attributable to the department and the assessment is later finalized.

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