TMI Blog2023 (9) TMI 1090X X X X Extracts X X X X X X X X Extracts X X X X ..... hs to 5 (five) years as per proviso to Sub-Section (1) of Section 11-A of the Central Excise and Salt Act, 1944 - It is also not the case of the appellant that their demand against the respondent for payment of Excise Duty was stayed by any Court, Tribunal or Forum having jurisdiction. Moreover, there is also no material to show that the provisional assessment and/or demand, if any, had translated into the final assessment order against the respondent pursuant to the judgment of the Supreme Court of India in the case of COMMISSIONER OF C. EX., SHILLONG VERSUS WOODCRAFT PRODUCTS LTD. [ 2002 (4) TMI 76 - SUPREME COURT] . Thus, the alleged demand of the appellant for payment of Excise duty is not based on any provisional assessment. Moreover, it is not the case of the appellant that any Court, Tribunal or Forum having jurisdiction had stayed the demand for Excise Duty made against the respondent. Therefore, the Court is inclined to hold that the impugned decision of the CESTAT, thereby rejecting the contention of the appellant of the demand was barred by limitation is not liable to be interfered with. Appeal dismissed. - HON BLE MR. JUSTICE KALYAN RAI SURANA AND HON BLE MRS. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Collector of Central Excise, Shillong v. Wood Crafts Products Ors., 1995 (77) ELT 23 (SC), had confirmed that the correct classification of Block Board was under Sub-Heading No. 4408.90 of the Central Excise Tariff for the period from 28.02.1986 to 19.03.1990, 20.03.1990 to 28.02.1992 and 01.03.1992 onwards. Accordingly, the following demand was raised upon the appellant:- (I) Rs. 67,04,503.08 (Basic)} Refunded to them for the period from + Rs. 1,54,612.54 (Special)} 28.02.1986 to 25.07.1989 (II) Rs. 66,85,752.92 (Basic)} Subsequent clearance at NIL rate of + Rs. 6,49,888.71 (Special)} duty for the period from 26.07.89 to 28.02.1993 (III) Total- Rs. 1,33,90,266.00 (Basic) + Rs. 8,04,501.25 Special The said demand was made under Section 11A of the Central Excises and Salt Act 1944, read with Rule 173(1)(2) of the Central Excise Rules, 1944 and moreover, the respondent was also put to notice as to why the said amount shall not be recovered within 30 days from the date of receipt of the notice. 5. The learned counsel for the appellant has submitted that the litigation with regard to the classification of the Block Boards was pending for a long time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment had preferred an appeal before the Supreme Court of India and that the Supreme Court of India in the case of Wood Craft Products Ltd. (supra), confirmed the classification of the Block Board under Sub-Heading No. 4408.90. Accordingly, by referring to the following 4 (four) cases, viz., (1) Collector of Central Excise, Shillong vs. Wood Craft Products Ltd., (1995) 3 SCC 454 ; (2) M/s Samrat International (P) Ltd. Vs. Collector of Central Excise, 1992 Supp (1) SCC 293; (3) Anupal Singh vs. State of UP, (2020) 2 SCC 173; and (4) Commissioner of Central Excise Vs. Woodcrafts Products Limited, (2002) 10 SCC 734, it has been submitted that the issue of classification of Block Board was settled by the Supreme Court of India vide judgment dated 20.03.1995. Thereafter, the authorities had raised a demand for Excise duty within the period of limitation and therefore, the demand was sustainable. It has been submitted that the period of limitation should be calculated after deducting the time spent in litigation on the issue raised before the Supreme Court of India regarding classification of Block Board under the Central Excise Tariff Act, 1985. It is also submitted that the said de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad made any provisional assessment in respect of the respondent. It is also seen that the appellant had not raised any demand upon the respondent for payment of Excise Duty for the period from 28.02.1986 to 25.07.1989 and from 26.07.1989 to 28.02.1993. In the said context, it would be relevant to extract the provisions of Section 11A of the Central Excise and Salt Act, 1944, as under:- 11A. Recovery of duties not levied or not paid or short levied or short paid or erroneously refunded.- (1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, a Central Excise Officer may, within six months from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short- levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice: Provided that where any duty of excise has not been levied or paid or has been short- levied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful misstatement or suppression of facts, or contravention o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e period of limitation should be extended from 6 (six) months to 5 (five) years as per proviso to Sub-Section (1) of Section 11-A of the Central Excise and Salt Act, 1944. The respondent claims that after Civil Rule No. 1199 of 1992 filed by the respondent was dismissed by this Court by order dated 23.03.1993, they had started to pay Excise duty on the Block Board under the Sub-Heading No. 4408.90 w.e.f. the month of March, 1993. The appellant has not denied the said assertion made by the learned counsel for the respondent. Moreover, the appellant has not been able to show that any provisional assessment was made in respect of the respondent for the period from 28.02.1986 to 25.07.1989 or from 26.07.1989 to 28.02.1993 and consequently, payment of Excise Duty was demanded by the appellant. It is also not the case of the appellant that their demand against the respondent for payment of Excise Duty was stayed by any Court, Tribunal or Forum having jurisdiction. Moreover, there is also no material to show that the provisional assessment and/or demand, if any, had translated into the final assessment order against the respondent pursuant to the judgment of the Supreme Court of India in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Samrat International (supra). A perusal of this judgment shows that the said judgment was delivered on the peculiar facts of that case and it does lay down a principle in law which enables the revenue to treat every classification made by it or the goods removed by virtue of said classification to be treated as the provisional merely because some appeal or other proceeding is pending, questioning the classification involved therein. As a matter of fact, this Court in the case of Coastal Gases Chemicals Pvt. Ltd. v. Asstt. C.C.E., Visakhapatnam (supra) while considering the judgment in Samrat International case (supra) held thus: On the facts of that case, however, this Court had held that the payment of duty which was made by the appellants in that case was provisional and the procedure under Rule 9B had been followed. We have not been shown any material on record to indicate whether the appellants in the present case had cleared carbon dioxide manufactured by them by following the procedure laid down in Rule 9B or that the payment of excise duty which the appellants had made during the relevant period was provisional. 12. From the above, it is clear that to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed. 13. Counsel for the appellant has pointed out that the observations made by this Court in Samrat International (P) Ltd. (supra) were explained in Metal Forgings vs. Union of India, 2002 (146) ELT 241(SC) and it was held that the decision in Samrat International (P) Ltd.(supra) was given on its own peculiar facts and could not be understood to mean that till the classification list is approved, the assessment framed would be treated to be provisional without following the procedure laid down under Rule 9B of the Rules. It was held: From the above, it is 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 then material to show that the goods were cleared on the basis of said provisional basis, and payment of duty was also made on the basis of said provisional classification. These facts in the instant case are missing, therefore, in our opinion there is no material in the instant case to establish the fact that either there was a provisional classification or there was an order made under Rule 9B empowering the clearance on the basis of such provisional classification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment wanted to classify them under Sub-heading No. 4408.90. The assessee had taken the view that the Block Boards were covered by sub-heading No. 4410.90 and no duty was payable under sub-heading No. 4410.90 as the Hon'ble CEGAT decided the case in favour of the assessee that these goods were classifiable under Sub-heading No. 4410.90. No dispute remained so far as the assessee was concerned. The duty was paid finally by the assessee but after the order was passed by the Tribunal as well as by the High Court, Guwahati they did not pay the duty and the department also did not demand the duty. For the duty already paid by them, they preferred refund claim, which was ultimately refunded by the department. It appeared from the case records that the department never came out with the proposal that the assessments were provisional. In the case of provisional assessment, no refund or demand can be made until and unless the assessments are made final. Hence, the assessments could not be treated to be provisional in this case. (ii) There was no order from the adjudicating authority under the provisions of Rule 9B of the CE Rules, 1944 for assessing the goods provisionally. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /1991 there was no mention of provisional assessments of the goods. Only in the present order passed by the adjudicating authority, there had been mentioned that the assessments were made provisional as per R.T-12 Returns but the assessee submitted that there having no valid order passed by the adjudicating authority, the said order is not maintainable. The order of the adjudicating authority is therefore, not sustainable. (viii) The adjudicating authority had not mentioned in the impugned order that the order was passed under the provisions of Rule 9B of the CE Rules, 1944. It had already been mentioned earlier that the assessee did not have any such order with them. Hence, no order under Rule 9B was passed by the adjudicating authority. (ix) The adjudicating authority had also not shown or exhibit any evidence of Bond, if any, were executed by the assessee or valid till date when the assessments are stated to have been provisional. Mere statement that the order was provisional is not adequate. The order reference has to be given and it is to be proved by the department that the order was valid till date along with provisional assessment and the Bond and Bank Guarantee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is on the formal order of provisional assessment, was justified and the said question is answered in the affirmative and against the appellant. In the absence of any document to show that the assessment made by the appellant was provisional, or that a demand was made but stayed by competent Court/Tribunal/Forum, having jurisdiction, the reliance on the case of Samrat International (supra) would not help the appellants in any manner whatsoever in light of the cases cited by the learned counsel for the respondent, which is discussed herein before. 18. In view of the discussions above, in so far as the Substantial Question of Law No. 2 is concerned, this Court is inclined to hold that as the facts of this case, the respondent had started paying excise duty under Sub-Heading No. 4408.90 pursuant to the judgment of this Court dated 23.03.1993, in Civil Rule No. 1199/1992 and that on their application, the Excise duty refund was made by the appellant s authorities and it has not been shown that the refund was made subject to the issue of classification being settled by the constitutional Courts. Therefore, this Court is inclined to hold that the 6 (six) month s limitation for making a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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