9911796707
TMI Blog2000 (4) TMI 689X X X X Extracts X X X X X X X X Extracts X X X X ..... d the captioned appeal. 3. Arguing the case for Revenue Shri Mewa Singh, Ld. DR submits that the appellants are manufacturers of Organic Surface Active Products and preparations thereof; that they filed Classification Lists No. 78/90-91 dated 4-5-90 and 14/91 w.e.f. 1-4-91. In the Classification List effective from 25-7-91 they claimed SSI benefit under Notification No. 175/86 as amended; that the assessments were done provisionally under Rule 9B of the Central Excise Rules, 1944 under the orders of Asstt. Collector during the pendency of approval of classification list; that a SCN was issued to the appellants on 23-1-92 asking them to show cause as to why these classification lists should not be modified and approved finally after denying them the benefit of Notification No. 175/86 of their products. The Asstt. Collector in his Order-in-Original held that the appellant was not eligible to Super detergent cake 555 as the said trade mark was owned by M/s. Goramal Hari Ram Ltd. of Delhi who were not eligible for SSI exemption. The appellants filed an appeal against this order and the Ld. Collector in his Order-in-Appeal held as indicated in the preceding paragraph. Ld. DR submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assification list was submitted and which was not approved. Ld. Counsel submitted that the classification list for the period 1991-92 was not provisional and therefore, the demand for this period will be hit by limitation as the entire demand for this period is beyond six months in-as-much as the classification list is for the period 1991-92 whereas the SCN was issued on 28-9-93. Ld. Counsel submitted that demand for the period Aug '90 to March '91 is for the period when the assessments were provisional and therefore, in his fairness Ld. Counsel submitted that the demand for this period is sustainable. He submitted that demand for the period from April '90 to July '90 is also time barred because during this period there was no provisional assessment. In support of his contention Ld. Counsel referred to the decision of the Hon'ble Supreme Court in the case of Coastal Gases & Chemicals Pvt. Ltd. v. Asstt. Collector of Central Excise reported in 1997 (92) E.L.T. 460. In support of his contention that classification list filed by the assessee but not yet approved by the Asstt. Collector clearances made in the meantime are not provisional. Ld. Counsel also referred to the judgment of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the matter to the AC for de novo adjudication to determine whether the relevant classification lists were provisionally approved pending their final approval in terms of Rule 173B of Central Excise Rules, 1944". He submitted that against this decision the appeal has been dismissed by the Hon'ble Supreme Court in this case. He submitted that this Tribunal in the case of CCE, Jamshedpur v. Jardine Handderson Ltd. reported in 1999 (114) E.L.T. 650 held that the assessments are not to be treated as provisional unless provisions of Rule 9B which requires a specific order to be made for provisional assessments and lays down certain statutory requirements, is totally complied with. As admittedly in the instant case there was neither any order of provisional assessment at the instance of the Department or at the behest of the respondent nor was any bond executed by the appellants to cover the future differential duty, if any, mere endorsement as regards the provisional assessment of R.T. 12 returns cannot be meant that the assessment was actually provisional. He submitted that in this case the Tribunal considered the decision of the Hon'ble Supreme Court in the case of Samrat Internati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld "9. This is the scheme for the payment of duty for clearance of goods by the manufacturers. This procedure is known as self-removal procedure. There will be no time bar for refund if the duty is paid under protest. The period of six months is prescribed in other cases. As we have already seen, Section 11B says that the period of six months in a case where duty of excise is paid provisionally under this Act or the Rules made thereunder, the date of adjustment of duty after the final assessment thereof. In this case the classification list filed by the appellant for the period 1-4-85 to 27-4-85 was not approved till 3-6-85. From the provisions of Rules 173B, 173C and 173CC which we have set out earlier, it will be seen that clearances can be made only after the approval of the list by the particular officer. However, if there is likely to be delay in according the approval the officer can allow the assessee to avail himself of the procedure prescribed under Rule 9B for provisional assessment of the goods. In the present case between 1-4-75 when the classification list was filed and 3-6-85 when the list was approved, the assessee was clearing the goods by determining the duty hims ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase when the personal ledger account is maintained for the clearance of the goods, since there is always a balance in the account current sufficient to cover the duty that may be demanded on goods intended to be removed at any time". In these circumstances the clearance of goods made by the appellant between 4-5-90 and 31-3-92 were in accordance with the procedure for provisional assessment. In such a situation clause (e) of para B of explanation under Section 11B will be attracted. In this case R.T. 12 returns for the period 1-4-90 to 31-3-92 were assessed on 14-5-93. It is, therefore, only from the date of assessment that time bar of Section 11B will operate. In the present case show cause notice was issued on 28-9-93. The demand under this show cause notice, therefore, cannot be said to be time barred. 11. Ld. Counsel for the respondent also cited the decision of this Tribunal in the case of Castrol Ltd., Calcutta v. CCE, Calcutta reported in 1985 (20) E.L.T. 102. It was submitted by him that this Tribunal observed "Rule 11 only provided as a reference date, the date of payment of duty or the date of adjustment of duty in the account maintained with the Collector under R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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