TMI Blog2013 (10) TMI 1146X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment has to be converted into a final assessment under Rule 9B(5). Order classifying the goods not to be treated provisionally merely because the appeal or other proceedings questioning the correctness of the such order are pending before the higher authorities and for establishing the clearances to be on the provisional basis, an order under Rule 9B of the erstwhile Central Excise Rules, 1944 and clearances / payment of duty on provisional basis is essential. As such, we hold that the assessment were not provisional as held by Commissioner (Appeals). If the assessments were not provisional, the question whether the classification has to be done under 3920.32 in terms of Board's circular No. 54/12/91-CX.1 dated 24.9.92 is to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relates to classification of HDPE tapes manufactured by the appellants and the dispute relates to the period August, 1989 to 14.10.92. Prior to the relevant period the appellants were clearing their final product under Chapter heading 54.06. For the financial year 1989, they initially filed the classification list claiming the classification list under Chapter 54. However, the same was withdrawn by them and another classification claiming the product to be falling under heading 3926.90 was filed. The said revised classification list was returned by their jurisdictional Central Excise authorities with directions to file the same under heading 54.06. At this stage, the appellants approached the High Court of Rajasthan by way of filing the wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the said circular No. 54/12/91 was issued on 24.9.92 followed by Trade notice dated 5.11.92, the Asstt. Commissioner by following the Supreme Court decision in the case of H M Bags Manufacturer, approved the classification under Rule 173B as under heading 3926.90. The said order of the Asstt. Commissioner was put to challenge by the Revenue before the Commissioner (Appeals), who reversed the orders and hence, the present appeal. 5. We find that the period involved in the present appeal is from August, 1989 to 14.10.92. Admittedly, the Board's circular was issued on 24.9.92 and was followed by a trade notice dated 5.11.92. The Hon'ble Supreme Court in the case of HM Bags Manufacturer, referred supra, has taken note of all the Board's cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e actually not provisional. 7. Though the Asstt. Commissioner in the impugned order has repeatedly used the expression 'provisional' for the assessment but we find that the said use of the expression is in a wide manner, inasmuch as the dispute was pending before the Hon'ble High Court of Rajasthan. It was in this sense, that Assistant Commissioner has termed the assessment to be provisional. In the strict sense, we find that for the assessment to be provisional, the elaborate procedure as prescribed under Rule 9B has to be followed by the Revenue as also by the assessee. Such procedure envisaged by Rule 9B of the erstwhile Central Excise Rules, require an order to be passed by the proper officer in terms of provisions of Rule 9B (1). The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r under Rule 9B of the erstwhile Central Excise Rules, 1944 and clearances / payment of duty on provisional basis is essential. As such, we hold that the assessment were not provisional as held by Commissioner (Appeals). 9. If the assessments were not provisional, the question whether the classification has to be done under 3920.32 in terms of Board's circular No. 54/12/91-CX.1 dated 24.9.92 is to be decided. We find that exact issue stand decided by the Hon'ble Supreme Court in the case of H M Bags Manufacturers as also in the case of Jai Fibres referred (supra). In that scenario, the said decisions would become applicable to the facts of the present appeals. By following the same, we hold that for the disputed period August, 1989 to 14. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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