TMI Blog2023 (6) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... en otherwise counsel for the tax authority could not produce any final assessment before this Court. Further provisional assessment is provided under Rule 9B of the Rules of 1944. As per the same, instance of provisional assessment arises when (a) the assessee is unable to determine the value of excisable goods and (b) when the asessee is unable to determine the correct classification of the goods. Before approving the provisional assessment, the assessee is also asked to furnish a security bond. In the present case, learned counsel for the authorities could not show any such bond or order approving the provisional assessment - The demand cum show cause notice is issued under Rule 10, but there is no reference to any final assessment carried out by the authorities in support of its demand. In the case of Assistant Collector of Central Excise, Calcutta Division vs. National Tobacco Co. India Ltd. [ 1972 (8) TMI 45 - SUPREME COURT ], a three judges bench of the Supreme Court has held that fullfilment of conditions provided in the Rule 9B of the Rules of 1944 is required to be followed for an assessment to be called as provisional assessment. The demand cum show cause notice dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g petitioner s claim for rebate of Rs. 16,79,339.65 is final and therefore demand notice dated 08.04.1980 for recovery of Rs.1,65,878.34 is time-barred. As per Rule 10 of the Rules of 1944 no demand can be made after a period of six months, while show cause notice for recovery of rebate is issued after almost eighteen months and is therefore clearly time-barred. He further challenges the finding that the order dated 04.10.1978 approving the rebate is passed on the basis of provisional assessment and therefore not hit by the statutory limitation of Rule 10 of the Rules of 1944. He further submits that the limitation of six months is not applicable only on such final assessment which are obtained by fraud, collusion, wilful misstatement or suppression of facts and since it is not alleged in the show cause notice, said Rule is therefore, not applicable in the present case. In support of his case counsel for the petitioner relies upon judgment of the Supreme Court in the case of Raj Bahadur Narain Singh Sugar Mills Ltd. vs Union of India and Ors.; (1997) 6 SCC 81. 4. Learned counsel for the respondents, Mr. Deepak Seth opposes the submissions of the counsel for the petitioner and cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1977-78 under Notification No. 108/78 Dated 28.4.78 as per details given below. This is in violation of the principles laid down by the Government of India, Ministry of Finance that an exemption from duty can not exceed the leviable duty itself. In this case M/S Oudh Sugar Mills Ltd., Hargaon have claimed and received Rebate at a level higher than the Excise duty, which is to be refunded/ deposited by M/S Oudh Sugar Mills Ltd., Hargaon under Rule 10 of Central Excise Rules, 1944. 7. Supreme Court in the case of Raj Bahadur (supra) has held such notices to be in violation of Rule 10 of the Rules of 1944. Relevant paragraphs of judgment in the case of Raj Bahadur (supra) reads: 3. On 30-7-1979 the Superintendent, Central Excise, Hardwar, issued to the appellants a notice. It stated that the appellants were erroneously sanctioned rebate of Rs 15,59,252.18 as against Rs 12,90,966.42 on excess production of 62,022.76 quintals of sugar achieved during the period from 1-5-1978 to 15-8-1978 . The notice set out the details of the rebate granted and the details of clearances and stated that, from these details, it is obvious that the factory has availed exemption in excess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a requirement of natural justice. It is also the law, laid down by this Court in CCE v. H.M.M. Ltd. [1995 Supp (3) SCC 322 : (1995) 76 ELT 497] It has been said there with reference to Section 11-A of the Central Excises and Salt Act, 1944, which replaced Rule 10, that if the authorities propose to invoke the proviso to Section 11-A(1), the show-cause notice must put the assessee to notice which of the various commissions and omissions stated in the proviso is committed to extend the period from six months to five years. Unless the assessee is put to notice, the assessee would have no opportunity to meet the case of the authorities. The defaults enumerated in the proviso were more than one and if the authorities placed reliance on the proviso, it had to be specifically stated in the show-cause notice which was the allegation against the assessee falling within the four corners of the said proviso. 10. In view of the fact that the notice fails to refer to any of the acts of commission or omission enumerated in the relevant proviso to Rule 10, the notice, given more than six months after the date of the order of refund, is time-barred. Put differently, the Superintendent who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n case any lesser quantity is cleared from the factory than the quantity produced during the months of May to September, 1978, the loss due to the same may be reduced accordingly. Therefore, except for the said condition the order with regard to the rebate granted to the petitioner is final. It cannot by any stretch of imagination be a grant of provisional rebate. Hence, the said order is a final order. Thus, this submission of counsel for the respondents also does not have any force. 12. Even otherwise counsel for the tax authority could not produce any final assessment before this Court. Further provisional assessment is provided under Rule 9B of the Rules of 1944. As per the same, instance of provisional assessment arises when (a) the assessee is unable to determine the value of excisable goods and (b) when the asessee is unable to determine the correct classification of the goods. Before approving the provisional assessment, the assessee is also asked to furnish a security bond. In the present case, learned counsel for the authorities could not show any such bond or order approving the provisional assessment. The demand cum show cause notice is issued under Rule 10, but ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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