ORDER
Shri S.S. Sekhon, Member (T)
1. The refund claim of the appellants’ importers had been rejected on the ground of time bar stating –
“…as the issue for refund was not connected with the finalisation of the provisional assessment the date of payment of duty at the time of filling the BE has to be taken as the crucial date. The refund claim was therefore rejected as time barred”
2. The Commissioner (Appeals) rejected the importers appeal holding
“…appellants plea that date of final payment of duty is the relevant date and not the date of original payment of duty even through provisional assessment was resorted to on a different ground than the basis for applying for the refund, is without merits;
…..period of six months to be calculated from the date of original payment and not from the date of finalisation of provisional assessment which was for different reasons…”
The present appeal is against the above mentioned order of the Commissioner (Appeals)-
3. We have heard both sides and considered the matter and find – (a) In the case of CCE Madras Vs Indian Tyre & Rubbers Co. Ltd. (1997 (94) ELT 495 Mad-DB) the DB bench of Hon’ble Madras High Court had held once an assessment is provisional, it is provisional for all purposes and not necessarily provisional in respect of the particular ground considered. They approved the Tribunal’s Larger Bench decision in the case of HMT Machine Tools (1991 (55) ELT 592. Being bound by these decisions, we cannot uphold the logic of the Commissioner (Appeals) findings. Since the assessments in this case were admittedly provisional under Customs Act and we found no reason not to hold the same view for provisional assessment under the Customs Act, the appeals are to be allowed.
(b) However, we find that Refund Claims are required to be examined under section 27 of the Customs Act 1962, with regard to the theory of ‘Unjust Enrichment’ as held in Mafatlal Industries Ltd. case, by the Supreme Court (1997 (89) ELT 247 (SC). This claim is therefore required to be examined on this account.
4. In view of our findings, the appeal is allowed as remand to the original authority to examine the refund claim as per law and to pass a suitable order thereafter.
(Pronounced in the court on 28/7/2001