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TMI Blog1999 (11) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... ged by the assessee. On 22-3-1988 the Collector (Appeals) ordered classification under Heading 4818.19. This was challenged by the department. The Tribunal in its order dated 17-10-1989 reversed the Commissioner's order. The appeal filed against this order was dismissed by the Supreme Court on 19-2-1991. Thus, classification under Heading 4818.90 sustained. 3. On 1-3-1988 classification list 105/88 effective from that date was filed once again claiming classification under Heading 4819.19. This was returned by the Superintendent on 16-3-1988. The list was re-filed on 5-4-1988 and was provisionally approved by the Assistant Collector on 10-6-1988. Quite sometime thereafter i.e., on 29-3-1989 the jurisdictional Superintendent directed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent appeal is before us. 4. We have heard Shri Vipin Kumar Jain for the appellant and Shri K.L. Ramteke for the Revenue. 5. Shri Jain fairly stated that he was not disputing the classification of the contested goods but would advance arguments on limitation. It is his submission that the facts before the Assistant Collector were such as would require provisional assessment to have been resorted to. It was claimed that the assessee had never filed B-13 bond. Referring to the judgment in the case of Usha Martin Industries Ltd. v CCE - 1987 (27) E.L.T. 728 and Nipha Machineries v. CCE [1990 (48) E.L.T. 549 (Tribunal) = 1990 (31) ECR 292] it was claimed that the provisional assessment would become effective only when the bond was fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtment in making such directions but the fact is that before and even after the receipt of this direction the assessee did not file the bond, but continued to discharge the burden of duty as determined by them and not as direction by the department. 8. Shri Jain would plead that where the assessee chose not to fulfil the burden cast upon him under the law, the department would suffer the consequence by having to forgo the duty. It is not so. We have seen the judgments relied upon by Shri Jain. We need not rely on the Usha Martin judgment, which was passed about a decade before the law was finally settled by the Supreme Court. In the cited judgment of Nipha Machineries it was the assessees who had claimed provisionality of the assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ph 5.6 of the judgment the Tribunal observed that in the case of Samrat International the provisional payment of duty was at higher level than the price finally approved and therefore the question of filing of bond did not arise. The Tribunal observed that the observation of the Court would not fit in with a situation where on final assessment a demand of duty from the assessee was involved. 10. We would refrain from commenting on this analysis made by the Hon'ble Tribunal on the Supreme Court judgment, but would retain to the observation that this judgment would not become applicable in the situation before us. We have also seen C.C.E. v. Pharmasia Pvt. Ltd. - 1989 (41) E.L.T. 77. In this judgment the Tribunal held that goods earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uential demand is not governed by the time frame prescribed under Section 11A or Rules enabling demands to be made. In the present case there is no doubt that the demands were the result of finalisation of the assessment. The classification made by the Assistant Collector forming the basis of the demand ultimately having been upheld by the Supreme Court cannot be questioned. We therefore find no force in the arguments of Shri Jain that the demands suffer by limitation. 12. Shri Jain did not press his arguments on res judicata. In the submissions before the Commissioner (Appeals) the assessee had pleaded that no abatement had been allowed for admissible deduction towards tax, duty, etc. which were allowable under Section 4 of the Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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