TaxTMI 
TaxTMI 
1998 (3) TMI 219
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....Central Excise was assessing clearance of the appellants under provisional assessment under Rule 9B. By his letter dated 30-10-1987, the said Superintendent of Central Excise informed the appellants that the Provisional Assessments have been finalised taking into account the Chartered Accountant's Certificate etc., furnished by them. He intimated therein that they should pay the Central Excise Duty of Rs. 3,425.83 by adjusting into their PLA. He further informed that on finalisation of the assessment, it is found that a sum of Rs. 35,844.68 becomes refundable to them for which a regular refund claim should be filed. After a protracted correspondence in the matter, the Superintendent in his letter dated 26-4-1994 informed the appellants that....
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....-1996, the Asstt. Commissioner considered the matter afresh as per the directions of the Hon'ble Tribunal after hearing the party on 25-3-1996. In his order, he came to the conclusion that since the duty paid on the GPs had been passed on to the buyers and relying on the decision of the Tribunal in the case of Vidula Chemicals & Mfg. Industries Ltd. v. CCE, Calcutta - 1996 (82) E.L.T. 489 (T). He sanctioned the refund but ordered to credit the same to the Fund under Section 11B(2). 3. A perusal of the order shows that the Asstt. Commissioner did not consider the two decisions of the ERB & NRB which he was directed to do in terms of the remand order of this Tribunal mentioned above. 4. In the impugned order-in-appeal, the Com....
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.... Rule 9B had been finalised under Rule 173-I therefore sub-rule (2) of 173-I was the correct rule applicable in this case. He further stated, due to compliance to this rule, the appellant had debited in their current account a sum of Rs. 3,425.83 as desired by the Superintendent who was the Proper Officer under Rule 173-I to finalise the assessment. He, then, argued that therefore the converse of this also equally true in this case - that is to say, that under the same rule when the Range Superintendent had found that certain amount of Rs. 35,844.68 had been paid in excess as duty, then according to the very said rule, they were also entitled to take credit in their current account of excess payments, on receipt of the assessment order of t....
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....iso as per the usual practice of this Tribunal. He further argued that since a refund claim was filed, it was dealt with by the lower authorities as per law. 9. I have carefully considered these arguments as well as the facts on record. I find that the Lower Authorities have not disputed that the outcome of the finalisation of provisional assessment resulted in a position where an amount of Rs. 35,844.68 was found to have been paid in excess by the appellants. I find that the whole dispute arose out of the action of the original authority in crediting the same to the Fund under Section 11B. 10. After the perusal of both the Order-in-Original and Order-in-Appeal, l am surprised to find that the specific directions of this Tri....
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....95 therein reads as follows : "95. Rule 9B provides for provisional assessment in situations specified in Clauses (a), (b) and (c) of sub-rule (1). The goods provisionally assessed under sub-rule (1) may be cleared for home consumption or export in the same manner as the goods which are finally assessed. Sub-rule (5) provides that "when the duty leviable on the goods is assessed finally in accordance with the provisions of these Rules, the duty provisionally assessed shall be adjusted against the duty finally assessed, and if the duty provisionally assessed falls short of or is in excess of the duty finally assessed, the assessee shall pay the deficiency or be entitled to a refund, as the case may be". Any recoveries or refunds consequen....