TMI Blog2014 (5) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... e same was confirmed - Held that:- the respondent has not proved either before the issuance of the show cause notice dated 15-3-1994 or before this Court that they have complied with what was laid down by the Apex Court in paragraph 12 of the judgment in Metal Forgings v. Union of India [2002 (11) TMI 90 - SUPREME COURT OF INDIA] It goes without saying that the respondents have not followed any of the conditions, hence, I fail to understand how the case of the petitioner was not considered while allowing the appeal made by the department. The show cause notice issued on 15-3-1994 was admittedly barred by time as provided under clause (1) of Rule 10 of the Rules, hence, the order impugned herein comes under the scrutiny of this Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Counsel appearing for the petitioner though elaborately argued challenging the correctness of the impugned order also submitted that the issue is squarely covered by the judgment of the Apex Court in Metal Forgings v. Union of India - 2002 (146) E.L.T. 241 (S.C.). But, however, this was not brought to the notice of the 3rd respondent Tribunal when the appeal was preferred. (ii) The learned senior counsel also relied upon another judgment of the Apex Court in Indian Refrigeration Industries v. Commissioner of C. Ex., Delhi - 2010 (255) E.L.T. 491 (S.C.). Paragraphs 12 and 13 of the judgment have been referred to interfere with the impugned order passed by the 3rd respondent Tribunal and the same are extracted hereunder : 12. The La ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was an order made under Rule 9B empowering the clearance on the basis of such provisional classification. In the absence of the same, we cannot accept the argument of the Revenue that in fact, the order of the Assistant Collector dated 21-1-1976 is a provisional order based on which clearance was made by the appellants or that they paid duty on that basis. On the contrary, as held by the Judicial Member the said order of classification was a final order, therefore, the Revenue cannot contend the limitation prescribed under Section 11A does not apply. (iii) In view of the above the only point to be answered is whether the respondent has applied the test laid under Rule 9B of the Central Excise Rules, 1944 (hereinafter referred to as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... going in appeal, thereby the matter was concluded once for all. (v) But the problem in the present case as pleaded by the learned Senior Counsel is that during the pendency of the appeal, a provisional order was passed on 7-2-1983. After the proceeding came to its finality and when the petitioner also started paying the duty from 4-11-1984, the Superintendent of Central Excise, Range-IIC has issued a show cause notice dated 15-3-1994 calling upon the petitioner to pay the duty from 3-8-1982 to 4-11-1984 and the same was confirmed by the first respondent by order dated 30-10-1995. When appeal was also filed, the order dated 30-10-1995 was reversed and the demand was set aside on the ground of limitation. As against that the department to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the show cause notice. Therefore, when the provisional order dated 7-2-1983 was also challenged by the petitioner, the appellate authority by order dated 1-6-1983 also accepting the case of the petitioner that it is not an appealable order, held that they have not followed the conditions mentioned under Rule 9B. When the Apex Court has made the point very clear that to establish that the clearances were made on a provisional basis there should be first of all an order under Rule 9B of the rules and the materials to show that the goods were clear on the basis of the said provisional basis and the payment of duty was also made on the basis of provisional classification, the learned senior counsel appearing for the petitioner prayed for settin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of the said provisional [order]; and (3) payment of duty was also made on the basis of the said provisional classification, are completely missing from the impugned order, it goes without saying that the respondents have not followed any of the conditions, hence, I fail to understand how the case of the petitioner was not considered while allowing the appeal made by the department. (ii) Besides it may be mentioned that in the subsequent judgment in the case of Indian Refrigeration Industries v. Commissioner of C. Ex., Delhi - 2010 (255) E.L.T. 491 (S.C.) the Apex Court also followed the Metal Forging s case approved by the three Judges Bench in Commissioner of Central Excise, Calcutta v. Hindustan National Glass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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