TMI Blog2018 (3) TMI 625X X X X Extracts X X X X X X X X Extracts X X X X ..... eriods of four months and two months were taken only to satisfy the six month period as prescribed under sub-Rule (3) of Rule 7 for finalisation of the provisional assessment, which period commences from the date of supply of the details. The assessee's contention cannot be sustained since there could be no clubbing of the various months falling within the period of provisional assessment, as permitted under Rule 7(1). There can be no remand of the provisional assessment as finalised for the period from 1.2.2007 to 31.7.2007 - appeal allowed in part. - WA. No. 2678 of 2017 IN WPC. 32742/2011 - - - Dated:- 3-1-2018 - K. Vinod Chandran And Ashok Menon, JJ. FOR THE PETITIONER : MR.R.S.SREEKUMAR. BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SMT.S.PARVATHI FOR THE RESPONDENT : SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL OF INDIA R2, R4 R5 BY SRI.RAMAVARMA REGHUNATHAN THAMBURAN, SC, CENTRAL BOARD OF EXCISE CUSTOMS JUDGMENT Vinod Chandran, J. The challenge in the writ petition was to Ext.P13 order, in revision, for two periods, wherein provisional assessments were made. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable to determine the value of excisable goods or determine the rate of duty applicable thereto, he may request the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, in writing giving reasons for payment of duty on provisional basis and the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, may order allowing payment of duty on provisional basis at such rate or on such value as may be specified by him. xxx xxx xxx (3) or theThe Assistant Commissioner of Central Excise Deputy Commissioner of Central Excise, as the case may be, shall pass order for final assessment, as soon as may be, after the relevant information, as may be required for finalizing the assessment, is available, but within a period not exceeding six months from the date of the communication of the order issued under sub-rule (1): Provided that the period specified in this sub-rule may, on sufficient cause being shown and the reasons to be recorded in writing, be extended by the Commissioner of Central Excise for a further period not exceeding six months and by the Chief Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearances between 01.02.2006 to 31.03.2006 was furnished by the appellant, by letter dated 24.07.2006 and that for the period 01.04.2006 to 31.03.2006 was furnished vide: letter dated 01.09.2006. The provisional assessment for the two month period was also finalised by order-in- original No.29/2006 dated 25.08.2006. 6. Ext.P5 show cause notice was specifically with respect to the four month period ie: from 01.04.2006 to 31.03.2006. It also indicates that the computation was made on a fortnightly basis; of the net loss in each of the four months and the demand was raised together for the four month period, for which the details were furnished by the assessee through letter dated 01.09.2006. The assessee's objection was to the effect that the provisional assessment has to be made for the block period of 6 months as permitted in Ext.P3. Ext.P3 is only a permission for payment of provisional duty, as applied for under Rule 7(1), for reason of the assessee being unable to determine the exact duty payable. Sub- Rule (3) of Rule 7, as already found, merely provides for a six month period to finalise the provisional assessment and it does not contemplate a block assessment. 7. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment, as permitted under Rule 7(1). But, we have to notice that the Assessing Authority did not determine the loss/gain for the separate months. 9. In the appeal filed by the assessee, Ext.P12 order was passed in which there was a remand made to the lower authority for de novo consideration, including re-calculation of the duty liability on account of loss as per the directions therein and with a further direction to the appellant to provide month-wise details for finalisation of provisional assessment. The remand has been made since the order-in-original has been passed computing the loss for the two separate block periods as noticed herein above. The argument of the assessee that there can be no departure from the show cause notice has to be accepted. The decision in Toyo Engineering India Limited held that the Department cannot travel beyond the show cause notice. Though the show cause notice has not been produced we have to pertinently observe that, the order- in-original shows the computation for the two separate periods and the remand has been made on the appeal of the assessee. 10. Even if the order-in-original was erroneous, there could have been no remand made for r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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