- (1.) The Court: Both the appeals are taken up for hearing analogously in terms of our previous order as in both the appeals the matter and controversy are same, the point involved as it was formulated earlier is as follows: Whether without any final assessment of duty in the present case the question of any revenue of excess amount duty would arise at all? The short fact leading to preferring this appeal is as follows: The assessee/respondent manufactures dutiable goods and because of exigency the goods were allowed to be removed from the factory gate and then duty was paid on the basis of the provisional assessment. In spite of repeated demands and requests, no final assessment order was passed. It is the case of the assessee/respondent that in certain instances of sales, the assessee is not liable to pay the duty or is liable to pay lesser duty because of the price variation of the products. In certain cases on the basis of self-assessment the respondent/assessee has paid the duty more than what was payable earlier as the products could be sold at an increased price. In any view of the matter, the assessee is entitled to refund as a whole. As such, an application was made for refund of the duty before the Assistant Commissioner of Central Excise, who kept the same pending without either making final order of assessment or passing any order of refund. Ultimately, after a long time this application was rejected holding that such an application was not entertainable.
(2.) This order of the assessing officer was appealed against, and the learned Tribunal has held in favour, in notional sense, of the respondent/assessee. It has been held upon interpretation the provision of law and considering the judgment of the Supreme Court that application for refund consequent upon the provisional assessment is entertainable, and accordingly, the learned Tribunal directed to examine this aspect and to quantify the amount of the refund claimed.
(3.) Smt. Sarkar, learned Advocate appearing for the appellant, submits that Central Excise Act and the Rules framed thereunder do not envisage for refund of the duty payable in case of a provisional assessment, and this can only be done when the final assessment order is passed. She has also drawn our attention to the provision of Section 11B of the said Act. The position was different when the Supreme Court decided the case of Mafatlal Industries Ltd. v. UNION OF INDIA, 1997 89 ELT 247. However, in order to get over the situation arising under the said Supreme Court decision by Notification No. 45/99-C.E. (N.T.), dated 25th June, 1999, an amendment has been made in sub-rule (5) of Rule 9B by adding a proviso thereto. The effect of proviso is that even after finalization of the provisional assessment under Rule 9B(5), if it is found that an assessee is entitled to refund, such refund shall not be made except in accordance with the procedure established under sub-Section (2) of Section 11B of the Act.;