TMI Blog2012 (3) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... f provisional assessment before the lower authorities ? 2) The appellant-assessee (originally known as Morris Electronics Ltd.) was engaged in the manufacture of soft ferrite components which according to the assessee were classifiable under chapter heading 8548.00 of the Central Excise Tariff ('CET' for short) attracting basic excise duty ('BED' for short) at 15% and special excise duty ('SED' for short) at 5% of BED. Accordingly, the assessee had filed classification list No.15/90-91 on 20/3/1990 seeking classification of the above goods under Chapter Heading 8548.00 of the CET. Pending finalisation of the classification list, the assessee cleared the goods on payment of BED at 15% and SED at 5% of BED. 3) Even before the classification list filed on 20/3/1990 was approved, the Superintendent of Central Excise by his letter dated 1/11/1990 called upon the assessee to classify the goods in question under tariff heading 8505.00 of the CET as per trade notice No.283/90 issued by the Additional Collector of Central Excise and Customs, Pune and pay duty accordingly. By a show cause notice dated 1/11/1990, the Supdt. of Central Excise and Customs called upon the assessee to show ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduced with effect from 26/5/1995) till the date of payment on 22/7/1998 should not be recovered under Section 11AA of the Act. The assessee objected to the claim for interest. Rejecting the contention of the assessee, an order in original was passed on 28/8/2000 whereby the demand for interest was confirmed under Section 11AA of the 1944 Act. The appeal filed by the assessee against the said order dated 28/8/2000 was dismissed by the Commissioner of Central Excise (Appeals), Pune on 18/6/2003. Further appeal filed by the assessee before the CESTAT was also dismissed by the Tribunal on 10/2/2004. Challenging the aforesaid appeal, the present appeal is filed by the assessee. 8) Mr. Sridharan, learned senior Advocate appearing on behalf of the appellant-assessee submitted that the liability to pay interest under Section 11AA of the 1944 Act arises when a person chargeable with duty determined under Section 11A(2) of the Act fails to pay such duty within three months from the date of such determination. In the present case, he submits that during the period from May, 1990 to 4/11/1990 the goods in question were cleared under provisional assessment under Rule 9B of the 1944 Rules an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 11A of the 1944 Act. Since the revenue, after the insertion of Section 11AA has chosen to demand interest, the assessee is entitled to raise the contention that the assessment finalised on 8/10/1993 was in fact finalised under Rule 9B of the 1944 Rules and not under Section 11A and, therefore, the interest provisions contained under Section 11AA are not applicable to the facts of the present case. Accordingly, Mr. Sridharan submitted that the impugned orders passed by the authorities below being contrary to law are liable to be set aside. 11) Mr. Asokan, learned counsel appearing on behalf of the Revenue submitted that in the present case admittedly the show cause notices dated 1/11/1990 and 20/3/1991 were issued under Section 11A of the Act and even the assessment order was passed on 8/10/1993 under Section 11A of the Act and, therefore, the authorities below were justified in demanding interest under Section 11AA of the Act. Mr. Asokan conceded that where the goods are cleared on provisional assessments, the final assessment would have to be made under Rule 9B and not under Section 11AA of the 1944 Act. However, since the assessment in the present case, has been made und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passing an order under Section 11A of the 1944 Act or under Rule 9B / 173I of the 1944 Rules, as the case maybe. 17) Where there was delay in approving the classification list or the price list filed by the assessee, the proper officer under Rule 173(2A) of the 1944 Rules, could, subject to the provisions of Rule 173CC, permit the assessee to avail the procedure prescribed under Rule 9B for provisional assessment of the goods. In other words, pending approval of the classification list, clearances could be made either under Rule 173CC or under Rule 9B of 1944 Rules. 18) In the present case, on perusal of the assessment order dated 8/10/1993, it is seen that the specific case of the assessee before the adjudicating authority was that there was no provisional assessment under Rule 9B and that Rule 9B was not applicable to the present case. Even before the Commissioner (Appeals), no plea was raised regarding clearance of the goods under provisional assessment. In the memo of appeal before the CESTAT, it was for the first time contended that the clearances of the goods pending approval of classification list should be deemed to have been assessed provisionally under Rule 9B and he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudicating authority was that goods in question were not and could not be cleared under Rule 9B and even the letter addressed by the Superintendent of Central Excise dated 1/11/1990 demanding duty does not refer to the provisional assessment. 23) If on investigation, the Tribunal arrives at a conclusion that the clearances during the relevant period were under Rule 9B, then the demand claiming interest under Section 11AA cannot be sustained, because, the assessment made on 8/10/1993 would in fact be finalisation of provisional assessment under Rule 9B and not under Section 11A (as erroneously recorded in the order) and in such a case, the interest liability under Section 11AA would not be applicable. As noted earlier, interest liability under rule 7(4) of the 2001 Rules would arise only if the provisional assessments were made after 1/7/2001 and in the present case, the provisional assessment, if any, being prior to 1/7/2001, the interest liability would not apply. If it is found that the clearances were not made under Rule 9B and the averments as well as the documents to that effect produced by the assessee are found to be false or fabricated, then, the Tribunal shall initiate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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