1999 (2) TMI 289

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.... Alcatel Inc., France. The authorities below felt that the appellant herein and their joint venture partner are having "special relationship". Consequently, the Revenue provisionally ordered for ignoring the invoice price and started loading the invoice price by a certain amount. In the final order passed by the Asst. Collector of Customs, the loading ordered provisionally has been dropped and gross invoice value as shown by the appellants herein was accepted. This order was passed on 28-4-1995. 3. Consequent to this order of adjudication, final assessments were made by the Customs authorities on 4 Bills of Entry dated 16-10-1995, 13-11-1995, 16-12-1995 and 18-12-1995, while making the provisional assessment final, no consequential ....

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....eported in 1997 (89) E.L.T. 247 that any recovery or refund consequent on the finalisation of provisional assessment under sub-rule (5) of Rule 9B of Central Excise Rules [corresponding Section 18(2) of the Customs Act] will not be governed by Section 11A or Section 11B as the case may be [Section 28 or Section 27 of the Central Customs Act, as the case may be]. In order to appreciate this contention of the ld. consultant, we reproduce para 95 of the said judgment : "Para 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 ass....

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....arises as a consequence of finalisation of the provisional assessment. He therefore submits that filing of the refund claim by the appellants on 13-2-1997 and 6-3-1997 cannot be said to be hit by time bar. He also relies for the abovesaid propositions on Tribunal's judgment in the case of C.C.E. v. Usha Beltron Constructions - 1999 (109) E.L.T. 1006 (Tribunal) = 1996 (13) RLT 237 as also on another judgment in Gujarat Fertilisers - 1999 (111) E.L.T. 151 (Tribunal) = 1997 (20) RLT 935 which follows Usha Beltron (supra). He has also pointed out that the Commissioner's observation that the appellants have to establish that the burden has not been passed on to the Customs is also not tenable inasmuch as the imported goods have been used captive....

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....ore the Commissioner. 9. We have carefully considered the pleas and arguments advanced from both sides. We observe from the file and impugned order that no new factual plea is involved and bills of entry clearly show endorsement that Modvat has been availed in respect of imported goods. Ld. Consultant is therefore correct on this point that imported goods have been captively utilised in the manufacture of final product. 10. As regards the plea of limitation, we observe that mere question of law does not call for a remand to the Commissioner of Customs. We observe from para 95 of the Apex Court's judgment as reproduced above that the plea advanced by the ld. Consultant is correct in law. Refund of duty or recovery of duty as ....