ORDER
D.C. Mandal, Member
1. We have heard Shri A.K. Jain for the appellants and Shri Jai Narayanan Nair for the respondent. Shri Jain has argued that the present appeal relates to the refund claim of the appellants for the period from 1.4.76 to 12.8.76. The Assistant Collector of Central Excise, in his order-in-original No. V(18)32-Ref/80/5332 dated 7.8.80, rejected the claim for refund pertaining to this period on ground of time-bar as the refund claim was submitted on 23.6.80. In this connection, the penultimate paragraph of the Assistant Collector’s order has been read out by the learned advocate. In the said para the Assistant Collector has observed that the refund claim should have been lodged on or before 31.3.1977. The learned advocate further argued that the Assistant Collector passed his order without giving any personal hearing and without issuing any show cause notice. As a result, the appellants did not have the opportunity to examine their case and establish that the refund claim was not time-barred. They contested the Assistant Collector’s order by filing an appeal before the Collector of Central Excise (Appeals), New Delhi, who passed the order-in-appeal No. 37-CE/KNP/90 dated 30.3.90 and rejected the appeal and said that there was no such eventuality under which the provisional assessment could be ordered. Hence the present appeal is before us. The learned advocate, during his arguments, has stated that the Tribunal, vide order No. 456-457/1987; A dated 22.6.87 held that the appellants’ refund claim for the period from 1.4.1972 to 27.7.1973 could not be considered as time-barred and therefore, the Tribunal allowed the appeal No. E/1639/85-A and ordered for consequential refund to the appellants. The learned advocate has argued that all the assessments during the period under claim for refund in this case were provisional and hence time limit for preferring the refund claim is not applicable. In this connection, he has drawn our attention to page 58 of the Paper-Book which is internal page 2 of the Order-in-Appeal No. l67-CE/KNP/88 dated 6.9.88 passed by the Collector of Customs and Central Excise (Appeals), New Delhi. On the same page the Collector (Appeals) has quoted from a letter dated 22.8.88 from the Collector of Central Excise, Kanpur to Collector (Appeals) as follows:
All the assessments for Coca-Cola and Fanta were provisional during the calender year 1976 and were finalised on 22.1.87 whereas specific rate of excise duty came into effect from 16.3.76 which was applicable in the case….Even if rates were specific assessment could stillbe provisional based on other issues.
The Collector (Appeals) in the said order, therefore, held that all the assessments of the appellants for Coca-Cola and Fanta were provisional throughout the calender year 1976 even if specific rate of excise duty came into effect on 16.3.1976, The learned advocate has drawn our attention to the order dated 22.1.87 of the Assistant Collector of Central Excise Division II, Kanpur, copy of which is at page 70-71 of the Paper-Book. In the said order the Assistant Collector has held as follows:
I order that the sale price shown in the bill books of the Kanpur Bottling Company, being provisional so far are now finally determined and approved as the assessable value of the products of the appellant-Company and all assessments for the said period from April 1970 to December 1977 (till the closure of the factory are now finalised accordingly).
The learned advocate states that the claim for the period in dispute also relates to Coca-Cola and Fanta. He has, therefore, stated that the Collector of Central Excise, Kanpur and also another Collector of Central Excise (Appeal), New Delhi categorically stated that the assessments were provisional. Hence the impugned order may be set aside and the appeal be allowed.
2. Although Shri Nair has reiterated what has been stated by the Collector (Appeals) in her impugned order, we are unable to upheld the same. The materials cited by the learned advocate before us clearly prove that the assessments during the period from 1.4.76 to 12.8.76 were provisional. Therefore, the time limit for lodging the refund claim is not applicable in this case. The rejection of refund claim by the Assistant Collector on the ground that the claim was lodged on 23.6.80, was not correct. Consequently, we set aside the impugned order and allow this appeal with consequential refund of the excess excise duty paid during that period to the appellants.
3. The learned advocate has prayed before us that a direction may be given by the Tribunal so that the refund is paid promptly as duty was paid 14 years ago. We direct that the Department should pay the refund within 2 months from the date of receipt of this order.