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TMI Blog2023 (9) TMI 1090X X X X Extracts X X X X X X X X Extracts X X X X ..... y, the original authority was directed to re-quantify and restrict the demand in terms of the said order by holding that there is no justification to impose any penalty, which was set aside. 4. In this appeal, the case projected by the appellant is that the respondent is dealing in manufacture and sale of "Block Board". The said item was classified under Chapter Tariff Sub-Heading No. 4408.90 and the prescribed Excise duty was being paid thereon. However, on and from 28.02.1986, the respondent had classified their same product under Chapter Tariff Sub-Heading No. 4410.90, where excise duty prescribed was "NIL". The Superintendent of Central Excise, Doomdooma Range-I, issued a demand-cum-show cause notice dated 24.07.1995 to the respondent, stating therein that a refund of Rs. 68,59,125.62 was given to the petitioner in respect of Central Excise Duty paid by them for clearing of Block Boards for the period from 28.02.1986 to 25.07.1989, vide Adjudication order No. V(18)33/Refund/AC DIG/90/660-666 dated 14.05.1991, passed by the Assistant Collector of Customs and Central Excise, Digboi, which virtually resulted in clearance of Block Boards at 'nil' rate of duty for the said period. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is submitted that the impugned appellate order passed by the CESTAT, Kolkata Bench was erroneous and, therefore, the same is liable to be set aside and quashed by upholding the demand made by the Revenue. By referring to the written note of submission submitted on behalf of the appellant, it has been submitted that vide order dated 11.01.1991, passed in Civil Rule No. 282 of 1991, this Court as an interim measure, permitted the Excise authorities to levy and collect Excise duty by classifying Block Board manufactured by the respondent under Sub-Heading No. 4410.90, which attracted 'nil' rate of duty. Therefore, the respondent did not pay the duty prescribed under Sub-Heading 4408.90. Thereafter, by order dated 24.01.1990, passed by this Court in Civil Rule No. 2228 of 1990, had directed the Excise authorities to refund Excise duty to the respondent from 28.02.1996 onwards. It is also submitted that by order dated 26.06.1992, passed by this Court in Civil Rule No. 1199 of 2022, directed the respondent authorities, as an interim measure to levy excise duty on Block Boards/ veneered Timber Board at 15% ad valorem pending disposal of the writ petition, which was paid by the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent is concerned, the said demand became time barred after six months from 23.03.1993, i.e. the date of judgment of this Court in Civil Rule No. 1199 of 1992. Apart from making oral submissions, the learned counsel for the respondent has also submitted a written note of submissions and has relied upon the following decisions, viz., (1) Coastal Gases and Chemicals Pvt. Ltd. V. Asstt. C.C.E, Visakapatnam, 1997 (92) ELT 460 (SC); (2) Metal Forgings v. Union of India, 2001 (146) ELT 241 (SC); (3) Commissioner v. Hindustan International Glasses & Industries Ltd., 2005 (182) ELT 12 (SC); and (4) Indian Refrigeration Industries v. Commissioner of E.Ex., Delhi, 2010 (255) ELT 491 (SC) . 7. This appeal was admitted by order dated 09.12.2019, by framing the following 2 (two) substantial questions of law:- a) Whether the learned Tribunal was justified in emphasizing on a formal order of provisional assessment in a manner which is contrary to the observations made by the Hon'ble Supreme Court in the case of M/s Samrat International (P) Ltd. v. Collector of Central Excise, reported in 1992 (58) ELT 561 (SC)? b) Whether the learned CESTAT was right in holding that there was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als used in the manufacture of goods which are exported out of India; (ii) " relevant date" means.- (a) in the case of excisable goods on which duty of excise has not been levied or paid or has been short-levied or short-paid- (A) where under the rules made under this Act a monthly return, showing particulars of the duty paid on the excisable goods removed during the month to which the said return relates, is to be filed by a manufacturer or producer or a licensee of a warehouse, as the case may be, the date on which such return is so filed; (B) where no monthly return as aforesaid is filed, the last date on which such return is to be filed under the said rules; (C) in any other case, the date on which the duty is to be paid under this Act or the rules made thereunder; (b) in a case where duty of excise is provisionally assessed under this Act or the rules made thereunder, the date of adjustment of- duty after the final assessment thereof; (c) in the case of excisable goods on which duty of excise has been erroneously refunded, the date of such refund. 9. The appellant has not been able to demonstrate that the respondent had not paid the appropriate Excise du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclined to reproduce the paragraphs-11 and 12 of the case of Metal Forgings (supra):- 11. The next question for our consideration is whether the order made by the Assistant Collector on 22.1.1976 could be treated as a provisional classification so as to keep the period of limitation frozen. The Judicial Member in this regard came to a definite conclusion that the said order is a final order against which appeals and revisions were taken recourse to. According to the learned Member merely because there is a continuing dispute in regard to the correctness of the said order of the Assistant Collector by way of appeals and revisions, the same does not make the order of the Assistant Collector anything short of a final order, therefore, he rejected the contention of the revenue on this count. While the Technical Member and the third Member following the judgment of this Court in the case of Samrat International (supra) came to the conclusion that the order of the Assistant Collector could be treated as a provisional order because there was correspondence regarding the excisability and the classification list filed by the appellants. From the above we notice that the majority of the me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cribed under Section 11A does not apply. 11. Paragraph-18 of the case of Hindustan National Glass & Industries Ltd. (supra) is reproduced as under:- 18. There is one other point which needs to be noted i.e. plea of the Revenue that the assessment orders were provisional in nature. This plea is equally untenable, in view of what has been stated by this Court in Metal Forgings v. Union of India, (2002) 146 ELT 241 SC. It was held that in order to establish that the clearances were on provisional basis an order under Rule 9B of the erstwhile Central Excise Rules, 1944 (in short the 'Rules') and clearances/payment of duty on provisional basis are essential. Reliance was placed on an earlier decision of this Court in Coastal Gases and Chemicals Pvt. Ltd. v. Assistant Commissioner of Central Excise, Visakhapatnam, (1997) 92 ELT 460 SC. 12. Paragraphs 12 to 15 of Indian Refrigeration Industries (supra), are quoted as under:- 12. The larger Bench of the Tribunal had recorded the finding, reproduced above, relying upon a judgment of this Court in Samrat International (P) Ltd. vs. Collector of Central Excise, 1992 (58) ELT 562 (SC). It has been held in the said case that the assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treated to be provisional ." 13. From the above and the facts of the present case, it is seen that 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. 14. In the aforesaid context, it is noticed that in paragraph 6 of the Order -In-Appeal No. 02/DIB/CE (A)/GHY/13 dated 21.01.2013, it has been recorded that the duty was finally paid by the assessee, but after the order was passed by the Tribunal as well as by this Court, they did not pay the duty and the Department also did not demand the duty and that for the duty already paid by them, the respondent had claimed refund, and the refund was processed and paid by the authorities. 15. Paragraph 6 of the said Order-In-Appeal dated 21.01.2013 is quoted herein below:- 6. Being aggrieved, the assessee filed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or did the adjudicating authority pass any order for provisional assessment. There is no reference anywhere with regard to the order of the provisional assessment passed by the adjudicating authority. Under such circumstances and in view of the decisions of the Hon'ble Supreme Court in this regard that provisional assessment can be done only under the order passed under Rule 9B of the CE Rules, 1944. It has to be taken that the assessments were not provisional. The order of the adjudicating authority is erroneous and is not maintainable. (vi) The point of provisional assessment had been taken beyond the parameter of the SCN. In the SCN provisional assessment had not been mentioned. Hence, the adjudicating authority could not raise such point in the order without referring the same in the SCN. The order of the adjudicating authority is therefore, not maintainable under the statute. (vii) After the classification was determined by the Hon'ble Tribunal and by the Hon'ble Guwahati High Court, no objection was raised by the department towards refund of the said amount before the Hon'ble High Court, Guwahati. The refund was ordered to be paid by the department to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals. (xi) In view of discussions made hereinbefore the assessee submitted that there is no merit in the order passed by the adjudicating authority. He had passed the order in his own way without giving proper evidence that the assessment were provisional and assessment were finalized. This is improper and incorrect and such order is not maintainable under the law. (xii) The assessee submitted that reopening of the case cannot be done with that they are barred by limitation. Limitation cannot be over written by way of reopening the case after finalization of the assessment. The finding of the adjudicating authority is not proper and correct. In view of the discussions made hereinbefore, the assessee submitted that there is no merit in the order passed by the adjudicating authority. The order is erroneous, and is not tenable. There is no question of refund of the said amount, which was paid by the department after passing an order on 1/2/1991 ." 16. The factual position, as mentioned in the said order, could not be demonstrated to be an erroneous finding by the appellate authority, i.e. Commissioner (Appeals). 17. Therefore, in respect of Substantial Question of Law No. 1, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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