TMI Blog2009 (5) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... d 10-5-2006. 2. Heard both sides extensively. 3. Relevant facts, in brief, are that the appellant has more than one unit, some of them are mining units and others are smelting units. They are removing lead and zinc concentrates from the mining units to the smelting units and at the time of removal, the duty was being paid provisionally in pursuance of order of Assistant Commissioner dated 25-4-2000 which reads as follows : Looking to the fact that the actual cost of production can be ascertained at the end of financial year only when the accounts are finalised, I order that the clearance of Lead and Zinc concentrates may be assessed provisionally under Rule 9-B of the Central Excise Rules, 1944 from 1-4-99 onwards as the cost of prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Rules at the rate prescribed under Section 11AB of the Central Excise Act, 1944. The order of the original authority has been upheld by the Commissioner (Appeals). 5. Learned Advocate for the appellant submitted that they were removing the goods not on sale but on inter-plant transfer; that the value could not be ascertained at the time of removal as the profit margin to be adopted could be ascertained for any financial year only after the end of financial year as per the general practice and as per the provisions of the Companies Act; that they had approximately declared the value and whenever they were factors which necessitated enhancement of the value, they had promptly enhanced the same. During this period, initially it was being t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E, Bangalore [2008 (89) RLT 464] the Department is bound to adjust the excess payment made by the assessee with any demand due from the assessee. 5.3 Learned advocate has, alternatively, further submitted that instruction of the Board in Part IV of Chapter 3 has prescribed that finalisation of provisional assessment means finalisation of an issue/ground and thereafter finalisation of ER 1/ER 2/ER 3 Returns. 6. Learned DR submits that the provisional assessment is resorted to in situations specifically mentioned under Rule 7. The provisional assessment can be only on grounds having a bearing on the rate of duty and or valuation. As per Section 4 of the Central Excise Act, the valuation has to be adopted for every consignment at the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be specifically authorised by Asstt. Commissioner/Deputy Commissioner as provided under Rule 7 after getting necessary bonds executed. The finalisation of the provisional assessment has to be necessarily done by the Assistant Commissioner/Deputy Commissioner. There is time limit of six months for finalisation of provisional assessment but the same extendable. In other words, the time limit prescribed is not specific for the obvious reason that, in some cases, it may take considerable time before finalisation of uncertain factors. In this particular case, the profit margin of the appellant-company for the financial year will become available only after a few months of the close of financial year. The plea for adjusting short payment agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the above-said period. If the Commissioner is satisfied with the reasons, he may extend the period, or otherwise direct the method to be adopted for finalisation of the assessment. For extending the period beyond one year from the date of provisional assessment, the request letter of the assessee should be put up to the Chief Commissioner in the same manner through Commissioner with his comments. The time limit of finalising the provisional assessment shall be applicable even to cases ordered for provisional assessment prior to 1st July, 2001. 2.6 Finalisation of provisional assessment means finalisation of an issue/ground and thereafter finalisation of each E.R.-1/E.R.-2/E.R.3. The amount will be communicated to the assessee at the ear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals). Thus, the appeals are rejected. 7.6 We agree with the submission of the learned DR that the said decision will apply to the facts of the present case. In other words, while it may take sometime to finalise the uncertain element namely, the profit margin in respect of appellant, once it is determined, the said profit margin has to be applied invoice-wise. We do not find any contradiction as the assessment has been done invoice-wise and, therefore, the finalisation of the assessment has also to be done invoice-wise. 7.7 As regards the excess payment made during certain periods, we notice that the appellant has already availed credit and had intimated to the Department that they have already taken credit at the end of smelting uni ..... X X X X Extracts X X X X X X X X Extracts X X X X
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