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Central Excise - Case Laws
Showing 41 to 60 of 3806 Records
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2015 (12) TMI 1493 - CESTAT NEW DELHI
Eligibility of CENVAT Credit - returned goods - Credit of duty paid on the vehicles at the time of their initial clearance which were later brought back to the factory due to damage - Held that:- Admitted facts of the case are that the appellants discharged due duty at the time of clearance of vehicle. Due to damage in transit, the said duty paid vehicle is brought back to the factory for being re-made or salvaged to the extent possible. We find that the case of the appellant is clearly covered by the provisions of Rule 16 (1). The said rule permits Cenvat credit of the duty paid as if such goods are received as inputs under the Cenvat Credit Rules, 2002 and to utilize this credit according to the said rules. Clearly a legal fiction has been created in this rule. In normal course duty paid motor vehicle cannot be an input for making same type of motor vehicle. Here the said vehicle is deemed to have been input only because it is brought into the factory for being re-made, refined, re-conditioned or for any other reason. We find the scope for which a duty paid vehicle can be brought to the factory is very wide and includes the processes undertaken by the appellants in the present case - When the vehicle is brought back to the factory for the intended purposes as stipulated under Rule 16 (1) the credit of duty paid on such vehicle is available to the appellant. Such vehicles undergo a process of manufacture and become part of process of production of new vehicle is settled and undisputed. As such, we find no legal basis for denial of credit either partly or fully in respect of such vehicles in terms of clear provisions of Rule 16 (1)
Further, first show cause notice 'being completely time barred as the issue involved under dispute is well within the knowledge of the Department for long and has been-subject matter of decisions including by this Tribunal - Impugned order is set aside - Decided in favour of assessee.
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2015 (12) TMI 1492 - AUTHORITY FOR ADVANCE RULINGS
Duty demand - Manufacture - whether the activity by the applicant of bending, assembly and inspection of end formed tubes amount to manufacturing within the meaning of the Central Excise Act - Held that:- The opinion expressed by the Commissioner is correct. Since, there is no dispute on the question as to whether the proposed activity amounts to manufacture or not, it is held that the said activity would amount to manufacture in keeping with the unanimous opinion of the applicant - Appeal disposed of.
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2015 (12) TMI 1491 - CESTAT NEW DELHI
Denial of CENVAT Credit - Credit on short receipt of iron ore - Held that:- Appellant has availed input service tax credit in respect of crushing of raw materials/iron ore which was supplied to the service provider/job worker for the process of crushing. After crushing some portion becomes waste/unfit for use in manufacture of final products. The remaining portion is received back in the factory and used in manufacture of final products. According to Revenue, cenvat credit is not admissible on that quantity which is not received back in the factory being unfit for use in manufacture. This view of the Revenue does not appear to be convincing - Undeniably, iron ore lumps are costlier than iron ore as such. It is the choice of the manufacturer to obtain iron ore and get into crushed lumps. Therefore, disallowance of credit on the ground that short quantity is not used in or in relation to the manufacture of final products, is not sustainable. Further, Rule 3(5) of Cenvat Credit Rules ,2004 speaks about inputs and capital goods and does not mention input service. - denial of credit is unsustainable. In the result, the impugned order, is set aside - Decided in favour of assessee.
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2015 (12) TMI 1490 - CESTAT NEW DELHI
Denial of Concessional rate of duty - Fuel efficient light commercial motor vehicles - Benefit of Notification No. 462/1986-CE - Held that:- Appellants are deemed as manufacturers of motor vehicles. This by itself does not make them eligible for the concessional rate of duty under Notification No. 462/1986-CE. The terms of the notification are very clear for the concession therein is available only for Fuel efficient light commercial motor vehicles which satisfy the Fuel efficiency test with the particular type of fuel and authorized pay load, speed and atmospheric condition as tested by the Competent Authority and certified by the officer not below the rank of Joint Secretary to the Government of India in the Ministry of Industry. The appellant is not in the possession of any such certificate. The motor vehicles cleared by them were not subjected to any such test for fuel efficiency. The fuel efficiency certificate, if any, in possession of the supplier of engine/chassis namely Eicher Motors Ltd. cannot by itself be the basis for the appellant to claim such concession. Such interpretation will be against the terms and conditions mentioned in the said notification. We find no infirmity in the order of the lower authority - Decided against assessee.
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2015 (12) TMI 1489 - CESTAT NEW DELHI
Denial of CENVAT Credit - outdoor catering service - Held that:- Impugned order has not dealt with the aspect that there is no nexus between the input service and the manufacturing activities undertaken by the Respondent. - Input service definition was amended w.e.f. 01.04.2011 providing for certain excluded services on which the manufactureror the service provider is not entitled to take cenvat credit of service tax paid thereon. The excluded services are contained in clause (C) of the definition of 'input service'. As per the definition, the excluded services are not to be considered as input service, when such services are used primarily for personal use or consumption of any employee. Outdoor catering is one of such excluded service itemized in the said clause. In the present case since, the outdoor catering service has not been used for the personal use or consumption of the employee and the said service has been provided by the employer to its employees for preserving proper working atmosphere in the factory for enhancing the productivity, I am of the view that the Ld. Commissioner (Appeals) has rightly extended the Cenvat benefit on the disputed service to the respondent. I find that this Tribunal in the case of Hindustan Coca Cola Beverages (P) Ltd. vs CCE Nasik reported in [2014 (12) TMI 596 - CESTAT MUMBAI] has allowed the cenvat credit on the disputed service. - Decided against revenue.
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2015 (12) TMI 1488 - CESTAT NEW DELHI
Denial of Abatement claim - manufacture of branded unmanufactured tobacco - period of closure of factory - Whether the Phrase Continuous period of 15 days or more stipulated in Rule 10 of the said Rules would mean period of 15 days of a particular month or the same can be spilled over to the next calendar month, for computation of the period of 15 days - Held that:- factory of the appellant was closed during the period from 23.03.2013 to 26.09.2013. Though the factory was continuously closed for a period of about 6 months, the Department is of the view that since in the month of March 2013, the factory was closed only for 9 days, the benefit of abatement as provided in Rule 10 shall not be applicable. In this context, I find that the case of the appellant is supported by the decision of the Tribunal in the case of Kaipan Pan Masala (2013 (1) TMI 356 - CESTAT, NEW DELHI), holding that for computation of the period of 15 days, the remaining period in the next calendar month, during which the factory was closed, shall also be taken into consideration - appellant shall be eligible for abatement for the period from 23.03.2013 to 31.03.2013, which have been rightly allowed by the Original Authority. In view of above, the impugned order denying the abatement to the appellant is set aside - Decided in favour of assessee.
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2015 (12) TMI 1487 - CESTAT MUMBAI
Admissibility of Cenvat Credit - Outdoor catering services and membership and subscriptions of various business association and business periodicals - Held that:- credit in respect of out door catering services was denied on the ground that the service charges to the extent Cenvat credit was proposed to be denied were recovered by the company from the employee. In this regard appellant made submission in the appeal that they have submitted revised quantification sheet according to which the amount of Cenvat credit attributed to the amount of service charges of out door catering service recovered from the employee comes to ₹ 60,871/- instead of ₹ 1,21,742/- as confirmed by lower authority. Therefore I find the amount demanded of ₹ 1,21,742/- does not appear to be correct and only credit of ₹ 60,871/- should be denied. However since lower authority have not looked into this re-quantification, I direct the adjudicating authority to verify this re-quantifications and if it is found correct then demand amount of ₹ 1,21,742/- shall be reduced to ₹ 60,871/-.
As regard the issue of Cenvat credit of membership and periodical of various business associations and law journals such as CII, Young President Pune Chapter, IEEMA, Economic Research India Ltd, MCCIA etc. I am of the view that all these member ship and subscriptions are directly related to the business activity of the appellant. Therefore I am of the view that Cenvat credit clearly admissible on these membership and subscription particularly when the amount is paid by the appellant, booked into their books of account as expenditure. - membership and business associations and subscriptions of business periodicals are admissible input services - Decided in favour of assessee.
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2015 (12) TMI 1486 - CESTAT NEW DELHI
Denial of CENVAT Credit - House-keeping and Rent-a-Cab service - Held that:- With regard to the service tax paid on housekeeping service, it is no doubt, a fact that the said service has been used for keeping the factory premises neat and clean, which is a statutory requirement of Section 11 of the Factories Act, 1948. Thus, said services has the nexus with the manufacture of final product, because without compliance with the provisions of the Factories Act, manufacturing activities are not possible. As regards, the rent-a-cab service for transportation of employees, it is not a welfare measure, but a basic necessity, for the reason that unless the workers reach the factory premises in time, the manufacturing activities either directly or indirectly will suffer. Thus, the disputed services should qualify as 'input service' for the purpose of getting the cenvat benefit - Decided against Revenue.
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2015 (12) TMI 1447 - KARNATAKA HIGH COURT
MODVAT Credit - Whether the assessee can be granted modvat credit without fulfilling the conditions of Rule 57R of the erstwhile Central Excise Rules 1944 viz. production of a certificate from M/s KSFC to the effect that the assessee have paid the amount of CVD to them and that M/s KSFC have not claimed depreciation amount under the Income Tax Act - Held that:- Due to some disputes between the KSFC and the respondent, the respondent was not in a position to make available of the required documents to be placed before the authorities as per Rule 57(6) of the Rules, which would not be fatal to the case. The non-compliance of the said Rule would not disentitle the respondent from availing the Modvat credit having deposited the countervailing duty as prescribed under the Rules. The Tribunal having accepted this contention and following the law laid down by the Apex Court in the case of Commissioner of Customs (imports) -vs- Tullow India Operations Ltd. [2005 (10) TMI 502 - SUPREME COURT OF INDIA] has given a finding that the denial of Modvat credit to the appellant on the ground that KSFC has not furnished the required certificate would result in gross miscarriage of justice - cost of the capital goods shall be reduced by the amount of duty to excise in respect of which a claim of credit has been made and allowed under the Rules, KSFC cannot claim depreciation on the portion of the capital goods representing countervailing duty taken as Modvat credit. - order passed by the Tribunal is just and proper and does not call for any interference by this Court - Decided in favour of assessee.
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2015 (12) TMI 1446 - GUJARAT HIGH COURT
Rectifion of order of larger bench [2013 (4) TMI 532 - GUJARAT HIGH COURT] - Reversal of CENVAT Credit where duty has been remitted on destroyed goods - Whether in view of the provisions contained in Rule 3 of the Cenvat Credit Rules, 2004 and Rule 21 of the Central Excise Rules, 2002, the decisions of this Court in case of COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, AHMEDABAD-I v. GDN GARMENTS, reported in [2010 (7) TMI 431 - GUJARAT HIGH COURT ] and COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS V. BIOPAC INDIA CORPORATION LTD., reported in [2010 (7) TMI 433 - GUJARAT HIGH COURT ] lay down correct law in holding that even after remission of duty upon destruction of final product, the manufacturer is not required to reverse the Cenvat Credit on the inputs used in manufacturing such final product.
Held that:- Full Bench has held that prior to introduction of sub-rule (5C) of rule 3 of the Cenvat Credit Rules, there was no provision, which provided for reversal of the credit by the excise authorities where it has been lawfully taken by a manufacturer and that by way of the amendment, a new right was created in favour of the revenue, it is evident that there is clear contradiction in the second part of the operative portion of the judgement, to the extent it is held that there is no scope of reversal unless any condition has been imposed for remission of duty in terms of Rule 21 of the Central Excise Rules, 2002 making it clear that the credit already taken is to be reversed. In the opinion of this court, when the Full Bench has clearly held that prior to September 7, 2007, there was no statutory provision permitting the revenue authorities to direct reversal of credit already taken, the question of imposing any condition for reversal while granting remission of duty in terms of rule 21 of the Central Excise Rules would certainly not arise. Thus, it appears that the aforesaid part has crept in on account of inadvertent error and the same being in direct conflict with the main part of the judgment, requires to be deleted in the interest of justice.
Powers of review can be exercised in rectifying an error in the earlier judgment. In the light of the above discussion, the applicant has clearly made out a case warranting exercise of review jurisdiction by this court. - The judgement and order dated 29.08.2012 passed by the Full Bench in Tax Appeals No.2520 of 2010, 896 of 2011 and 1586 of 2010, is hereby modified by deleting the following sentence from paragraph 20 of the said judgement:
"Unless any condition has been imposed for remission of duty in terms of Rule 21 of the Central Excise Rules, 2002 making it clear that the credit already taken is to be reversed"
Decided in favor of Assessee.
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2015 (12) TMI 1445 - CESTAT NEW DELHI
Reversal of cenvat credit - some iron ore fine or smaller pieces of iron ore emerge which are not usable for further manufacture of sponge iron. Therefore, same were cleared without payment of duty - duty on 10% of the value of exempted goods cleared by the respondents - Held that:- As the facts of the cases in hand are identical to the facts of the case in Maa Mangla Ispat Pvt.Ltd. (2013 (5) TMI 268 - CESTAT NEW DELHI), and after examining the impugned order, in the light of the decision in the case of Maa Mangla Ispat Pvt.Ltd. (supra), I do not find any infirmity in the impugned order, the same is upheld. - Decided against Revenue.
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2015 (12) TMI 1444 - CESTAT ALLAHABAD
Duty demand - Determination of annual capacity of production - Demand of differential duty - penalty under Rule 96ZP (3) - Held that:- No case of deliberate default is made out against the appellant. I also hold that the differential duty became payable only on pronouncement of the order of the Hon'ble Supreme Court dated 06.07.2011. It is admitted fact that the appellant paid the differential duty (50% was paid during pendency of appeal and the balance was paid soon after passing of the OIO). Thus, there is no deliberate delay on the part of the appellant. In this view of the matter, I hold that the appellant would be liable to interest w.e.f. 30th day of service of OIO on the amount of duty paid belatedly, if any. Such interest, shall be calculated by the adjudicating authority and intimated to the appellant. The appellant is also at liberty to calculate the interest payable, if any, in terms of this order and filed the same for approval of the' adjudicating authority - Decided partly in favour of assessee.
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2015 (12) TMI 1443 - CESTAT AHMEDABAD
Classification of “Primosa” and “Simrose” - Medicaments or fixed vegetable oils - Classification under Sub-heading No. 15159091 or under Sub-heading No. 30049069 - enhancement of penalty - Held that:- tribunal in appellant’s own case held that the “Primosa” and “Simrose” which are encapsulated fixed vegetable oil,classifiable under Heading No. 15.03 of CETA as fixed vegetable oil. In that case, the Revenue contended that it would be classifiable under Sub-heading No. 2108.99 of CETA as “Dietary Food Supplement”. - It is evident from record that EPO is a fixed oil obtained from the seeds of plant containing Linolenic Acid with some Gamolenic Acid. It is encapsulated i.e. packed in small capsules in the appellants premises. It is not chemically modified. The Fatty acids contained in EPO is natural ingredient. There is no addition of fatty acid under Section VI of CETA. As per Chapter Note I (e) of Chapter 15 of CETA, fatty acid of Section VI of CETA would not cover in Chapter 15. Section VI of CETA covers “Products of Chemical or allied industries.”
In the present case, EPO is edible grade oils and sold as EPO in capsules with the name of “Primosa” and “Simrose.” We find that the similar issue was raised before the Tribunal in the case of M/s. Supreme Enterprises (2015 (2) TMI 954 - CESTAT MUMBAI).
This product is of Amazon origin and inca inchi oil is a natural oil extracted from the seeds of the Inca Inchi tree. The oil contains natural vitamins and antioxidants (Omega 3) and has not been chemically modified at all. Revenue contended that the product is claimed to have properties of preventing blood clotting triglycerol blood sugar and so on. The Tribunal held that impugned product merits classification in under Sub-heading No. 1515.90 of CTA. In the present case, it should be kept in mind that the Customs Authorities classified EPO under Sub-heading No. 1515 of CTA and the dispute was raised by Central Excise Authorities - products “Primosa” and “Simrose” would be classifiable under Heading No. 15159091 of CETA and not under sub-heading No. 30049069 of CETA and the demand of duty alongwith interest and penalty cannot be sustained. The impugned orders are set-aside - Decided in favour of assessee.
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2015 (12) TMI 1442 - CESTAT BANGALORE
Denial of CENVAT Credit - nexus with the appellant's manufacturing activities - Imposition of equivalent penalty - Held that:- Services involved in the said show-cause notice are training services received by the appellant from M/s Pegassus HRD Centre Pvt Ltd for training of their employees in managerial and management skills; photography services received to cover the company functions organized inside the factory; travel expenses for employees' family visits to the factory plant of the assessee and travel agent services for reobtaining of the residential permit of the Japanese Director, who lost the same. Out of the said services, I find that training of the employees is an integral part of the running of the business. Similarly photography services to cover the company functions has been held to be cenvatable input service by the Hon'ble Karnataka High Court in the case of Toyota Kirloskar Motor Pvt Ltd Vs CCE [2011 (3) TMI 1373 - KARNATAKA HIGH COURT ] . The services obtained from the travel agent for reissuance of the residential permit of the Japanese Directors are also services availed in connection with the business. However, the travel expenses for employees' family visit to the factory plant of the assessee cannot be held to be having any connection with the appellants' manufacturing activities or business activities. As such, except for CENVAT credit of ₹ 895/-, I hold that the other credits are available to the appellant. - Decided partly in favour of assessee.
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2015 (12) TMI 1441 - CESTAT BANGALORE
Claim of refund of excess interest (@24% instead of @13%) paid on differential duty - Bar of limitation - Held that:- Admittedly the refund application filed by the appellant on 08.04.2009 is beyond the period of limitation. The appellant's contention is that they had challenged the earlier order of finalization and the Commissioner (Appeals) had directed them to file a refund claim instead of challenging the rate of interest. Inasmuch as they have filed refund application within a period of one year from the date of the order of Commissioner (Appeals), the same has to be treated as having been filed within the limitation period - appellate authority has observed that if the payment of interest is erroneous on the part of the assessee they can file refund claim within the normal period of one year. There is nothing in the said observation or finding of Commissioner (Appeals) to suggest that the period of one year would start running from the date of passing of the order. There is also no provision of law to that effect. If the appellant was aggrieved with the said order of Commissioner (Appeals) in deciding on the correct rate of interest, they could have challenged the same. In fact, the appeal was filed before the Tribunal, but the same was subsequently withdrawn, thus allowing the said order of Commissioner (Appeals) to attain finality. - refund application having been filed beyond the period of one year from the relevant day, has to rejected as barred by limitation - Decided against Assessee.
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2015 (12) TMI 1440 - CESTAT BANGALORE
CENVAT Credit - duty paying documents - whether the respondents can avail CENVAT credit of service tax paid by them on various services received and utilized, on the basis of debit notes - Held that:- original adjudicating authority has made certain observations that such documents do not contain full details but there is neither any reference to such non-mentioning of requisite particulars in the said debit notes nor is there any rebuttal by the original adjudicating authority to the respondent's claim of the said debit notes disclosing full particulars. The Commissioner (A) has noted the said fact and has held that a mere observation by the adjudicating authority, without even disclosing or indicating the particulars not available in the said debit notes cannot be appreciated. Even in their memo of appeal, Revenue has not referred to any such particulars being not available in the debit notes. As such, I find no infirmity in the impugned order of the Commissioner (A) - Decided against Revenue.
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2015 (12) TMI 1439 - CESTAT NEW DELHI
Denial of CENVAT Credit - Goods neither inputs not capital goods - Held that:- It is no doubt some of the items have been used by the appellant for fabrication of supporting structure embedded to earth for which the Chartered Engineer who is an expert in the field as already given in his report that appellant has used the quantity of 49.85 MT of these items for supporting structures and on the said quantity appellant has not claimed Cenvat Credit. The appellant is able to show by way of Chartered Engineer Certificate that out of the total quantity 150 MT were used by the appellant for fabrication of capital goods. These observations of the chartered engineer which have been relied by the appellant have been discarded by the authorities below without any tangible evidence. Merely saying that all the items were used for supporting structure is not admissible evidence. Therefore, as the appellant has been able to show the usage of the items in question for fabrication of capital goods as directed by this Tribunal in the earlier round of litigation, I have no hesitation to hold that appellant is entitled to take Cenvat Credit on this quantity. For the remaining quantity if revenue feels that appellant has taken the credit they may initiate another proceeding against the appellant. But to the quantity upto 150 MT appellant is entitled to take Cenvat Credit. - Appeal disposed of.
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2015 (12) TMI 1438 - CESTAT NEW DELHI
Area based exemption - dispute is about another manufacturing unit (unit II) claimed to have been set up by the appellant company in March, 2010 on the first floor of the same building and this unit is also for manufacture of the same products - Denial of duty exemption under notification no. 49/03CE - Clubbing of clearances - Held that:- Goods manufactured from the new machinery, if any installed, in the name of Unit-II on the first floor would be eligible for duty exemption under notification no. 49/0 3CE. However, since both the Units, - Unit-I as well as Unit-II, are upheld to be one entity and not the independent Units, they would be eligible for exemption under notification no. 49/03CE only for ten years from the date on which the Unit-I had commenced commercial production - if the Unit-I had commenced commercial production sometime in 2004 it would be eligible for exemption under this notification till 2014 only. The attempt to set up the Unit-II as a separate Unit on first floor of the Unit-I appears to be an attempt by the appellant company to enjoy the exemption in the name of Unit-II for another period of ten years. Since, we have held that Unit-II has no existence and Unit-I and Unit II have to be treated as one unit, the same would be eligible for exemption only for a period of ten years from the date on which the unit-I had commenced commercial production - Appeal disposed of.
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2015 (12) TMI 1402 - SUPREME COURT
Undervaluation of goods - Related person - Appeal against the decision of Tribunal [2006 (10) TMI 66 - CESTAT CHENNAI] - When department fails to prove any one of the following condition the allegation of under valuation is not sustainable (i) mutuality of interest, (ii) price is lower to the normal price and (iii) buyer and seller are related person - Held that:- Tribunal has arrived at the aforesaid findings by giving cogent reasons on the basis of evidence that was produced by the respondent(s)/assessee(s). - these are pure findings of fact arrived at by the Tribunal. In fact, in the appeal filed by the Department it is not even a ground that these findings are perverse - No question of law arises - Decided against Revenue.
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2015 (12) TMI 1401 - CESTAT MUMBAI
Denial of provisional assessment of the goods as per the provisions of Rule 7 of the Central Excise Rules, 2002 - Held that:- Legislature intent is very clear inasmuch as regards the provisional assessment is concerned, which is indicative that the Assistant Commissioner or the Dy. Commissioner of Central Excise, as the case may be, may order allowing payment of duty on provisional basis. There cannot be any other view from the plain reading of the provisions as reproduced herein above. In the case in hand, rejection of request of provisional assessment only for not providing the records to finalize assessment, cannot be a reason as the department in many cases have undertaken the exercise of finalizing the provisional assessment belatedly. Secondly, the reliance placed by the first appellate authority as well as the learned AR on the decision of the Hon'ble High Court of Kolkata is totally misplaced as the same is in respect of the provisions of Section 18 of the Customs Act, 1962 asking the provisions assessment of duty on direction of the proper officer. That is to say when an import takes place, assessee cannot claim provisional assessment as matter of right. While the Central Excise Act and the Rules made thereunder (the provisions of Rule 7) which are reproduced herein above, authorized the Assistant Commissioner or Dy. Commissioner of Central Excise to allow the clearance of the goods on provisional assessment. - Decided in favour of assessee.
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