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TMI Blog2018 (12) TMI 1019X X X X Extracts X X X X X X X X Extracts X X X X ..... ls before the CESTAT. The CESTAT vide its Order No. A-80-81/KOL/2008 dated 10.1.2008 allowed the appeals by way of remand to the Original Authority and the Cross Objection filed by the Revenue was also disposed off. The CESTAT in para 3 of its order disposed off both the appeals with the following directions:- "(a) In the proceeding pending before the jurisdiction Deputy Commissioner arising out of the Show Cause Notice dated 09.05.01, the Adjudicating Authority shall take into account and consider the appellant's contention with regard to the date from which the revised classification under Heading 39.02 shall be effective. (b) The Adjudicating Authority shall also first consider the appellant's contention that the assessments were not p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) Whether the assessment during the subject period was provisional or not? (2) Whether the re-classification of the product (RPG) can be done prospectively or retrospectively and see with effect from which date revised classification date will be affected? 3. After following the due process of law Ld. Adjudicating Authority has confirmed the demand of Central Excise duty to the extent of Rs. 89,48,306/- and along with the interest and also imposed equal penalty under the various provisions of the Central Excise Act and Rules. Again this background appeal is before us. 4. Ld. Advocate on behalf of the appellant has stated that no order of provisional assessment has been made in this case and the subject goods were assessed finally at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance was placed by the Ld. Adjudicating Authority on the letter/communication to arrive at the conclusion that the assessments were provisional is not correct. On account of having not issued the order of the provisional assessment the clearance cannot be treated as provisional. It was also impressed upon that bond, which the Department is considering as the bond executed for the provisional assessment does not pertain to impugned period but for the subsequent period, that is not for the period from 1/3/1994 to 22/07/1996. It was also argued by the Ld. Advocate that during the impugned period, the classification list was approved finally and no bond was executed, also the appellant has not given any declaration in the RT 12 returns of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Rule under sub-heading 3720.90, which has duty approved by the proper officer approving their Classification No. 7/BL/94-95 dated 17/3/1994, accepting the classification of the product under chapter heading 3926.90 with the benefit of Notification No. 15/94/CE dated 1/3/1994 at the Nil rate of subject to the fulfilment of conditions as per the serial No. 21 of the Notification. This classification list was dully approved by the proper officer without any endorsement about the provisional assessment as being claimed in the impugned order of the Ld. Adjudicating Authority. It is also on record that earlier another classification list bearing No. 5/BL/92-93 dated 3/3/1993 was also filed by the appellant for the period 1992-93 with effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 96 for which the classification list was filed on 17/3/1994 with effect from 1/3/1994 claiming the classification of reprocessed granule (RPG) under chapter Heading 3926.90 at Nil Rate of Duty claiming the benefit of Notification No. 15/94 (supra). From the perusal of this classification list, we find that the approval has been made finally. However, the Adjudicating Authority has held that the assessment is provisional so that the demand could be issued beyond the normal period of limitation definitely is not correct. The classification list does not indicate any endorsement to the effect that the assessment has been made provisional under Rule 9(B) of Central Excise Rules. The appellant has also not enclosed of RT 12 returns and the invoi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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