TMI Blog2008 (9) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... nalization of accounts and had paid the same - Therefore, the question of treating the clearances as provisional assessment does not arise in the present cases – demand of differential duty is not sustainable. - E/536 & 546/2006 - 1134/2008 - Dated:- 23-9-2008 - Dr. S.L. Peeran, Member (J) and Shri T.K. Jayaraman, Member (T) Mrs. Sudha Koka, SDR, for the Appellant. S/Shri M.S. Nagaraja, Advocate and A.G. Kulkarni , C.A. , for the Respondent. [Order per : S.L. Peeran, Member (J)].- These are two revenue appeals arising from two different orders. As the issue is common in both the appeals, they are taken up together for disposal as per law. The orders are identical including the facts of the case. The findings recorded i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a letter to the appellants advising them to pay duty on current year's cost or else seek provisional assessment order without in any way responding to the appellants letter dated 25-8-2000, when they had proposed to determine assessable value as per Rule 8 of Valuation Rules and also the fact that previous year's costs would be adopted for discharging duty at the time of clearance. I find that department failed to insist on following the procedure required for provisional assessment under Rule 9B/Rule 7 as no order to this effect was passed despite the fact that appellants were clearly stating that they would discharge duty on provisional basis only. The basic question therefore is whether the adjudicating authority had any jurisdiction, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment if finalization orders were issued after payment of differential duty by the appellants year wise in terms of Circular No. 382/15/98-CX dated 19-3-1998. In the present case order is being passed after lapse of several years. Department cannot circumvent limitation by resorting to provisional assessment in such a manner. Thus, self assessment by appellant for years 2000-2004 must be treated as final. The appellants have also taken up alternative pleas disputing the correctness of impugned order on the ground of its several infirmities resulting in distortion of costs and consequently an inflated figure for differential duty. They have claimed, and it is not disputed, that adjudicating authority has adopted average cost of product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from them under the facts and circumstances of the case. Similarly no excess duty paid by them, as claimed is refundable unless there is a claim which passes the test of limitation and unjust enrichment. Since impugned order is issued without jurisdiction as there is no provisional assessment order in pursuance of which a finalization order is called for, I am inclined to set it aside. Accordingly I find there is no need to remand the matter for passing a speaking order on points raised in the alternative plea. This exercise serves no purpose. I set aside the impugned order and allow the appeal." 2. The Order-in-Appeal No. 73/2006 dated 28-2-2006 in the case of M/s. Kalyani Steels Ltd. is identical as referred above. 3. Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red if personal ledger is maintained with sufficient balance therein. The learned SDR assailed the orders of the Commissioner (A) and prayed for setting aside the same by allowing the appeals. 3. The learned counsel on the other hand stated that the Samrat International (P) Ltd. (supra) judgment is not applicable to the facts of the case but on the other hand the Supreme Court ruling rendered in the case of Metal Forgings v. UOI - 2002 (146) E.L.T. 241 (S.C.) wherein it had been clearly laid down that to establish the clearances to be a provisional assessment, then an order under Rule 9B of erstwhile Central Excise Rules, 1944 and clearances/payment of duly on provisional basis is essential. This ruling has been again followed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessment and demand excess duty. In any case, the assessee had themselves calculated the excess amount required to be paid on finalization of accounts and had paid the same. Therefore, the question of treating the clearances as provisional assessment does not arise in the present cases as held by the Commissioner (A). The judgments of Samrat International (P) Ltd. (supra) has been distinguished by the Apex Court in the ruling of Metal Forgings (supra) and CCE v. Hindustan National Glass Indus. Ltd. (supra) would clearly apply to the facts of the case. The Commissioner (A) has rightly followed the ratio of the judgments cited by him in the order. There is no infirmity in the impugned orders and also we do not find any merit in these ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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