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TMI Blog2023 (11) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... of railway packing. The price list was finally assessed by the Jurisdictional Commissioner on 11/12/1992 wherein, he has allowed the deduction of JPC Cess. The Appellant has followed this finalized price for the clearance between March 1992 to May 1993. Being aggrieved by the OIO passed on 11/12/1992 by the Assistant Commissioner, wherein the price list was finalized, the Department filed an Appeal before the Commissioner (Appeals). The Commissioner (Appeals) vide OIA dated 19/04/1994 has allowed the Department's Appeal with a direction to AC to approve the price list by including the JPC Cess in the assessable value. 2. In the meanwhile, Show Cause Notice was issued on 22/2/1996 proposing to demand differential duty on account of additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rection to consider all the grounds taken by the Department and assesse. The Commissioner (Appeals) vide the impugned OIA No. 53/CE/B-II/2008 dated 26/12/2008 confirmed the demand and held that interest is also required to be paid under Rule 7 of the Central Excise Rules, 2002. Being aggrieved, the Appellant is before the Tribunal which has come up for hearing before us today. 4. The Learned Counsel appearing on behalf of the Appellant submits that the Excise Duty for the period under dispute was provisionally assessed on 10/03/1992 and the same was finalized by the Assistant Commissioner vide his Order dated 11/12/1992. In this finalized Order, the Appellant was allowed the benefit of deduction of JPC Cess. The Department had filed an app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... governed by Section 11A or Section 11B, as the case may be. However, if the final orders passed under sub-rule (5) are appealed against - or questioned in a writ petition or suit, as the case may be, assuming that such a writ or suit is entertained and is allowed/decreed - then any refund claim arising as a consequence of the decision in such appeal or such other proceedings, as the case may be, would be governed by Section 11B. It is also made clear that if an independent refund claim is filed after the final decision under Rule 9B(5) re-agitating the issues already decided under Rule 9B - assuming that such a refund claim lies - and is allowed, it would obviously be governed by Section 11B. It follows logically that position would be the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable to be set aside on account of time barred itself. 7. He further submits that the Show Cause Notice did not propose to charge any interest. The Commissioner (Appeals) vide the impugned order has demanded interest in terms of Rule 7 of CER, 2002. Therefore, he submits that impugned order has travelled beyond the scope of the Show Cause Notice. He relies on the following case laws:- (i) CCE, Nagpur Vs. Ballarpur Industries Ltd., 2007 (215) ELT 489 (SC) (ii) CCE, Bangalore Vs. Brindavan Beverages (P) Ltd., 2007 (213) ELT 487 (SC) 8. The Learned Counsel submits that on the issue as to whether JPC Cess is required to be added or not in the assessable value, the Supreme Court after taking up batch matters has decided the issue in fav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e documentary evidence and the cited case law. 12. From the chronological events discussed above, it is seen that the Price List was provisionally assessed on 10/3/1992 and was Finally Approved on 11/12/1992. The Assistant Commissioner has passed an Order allowing deduction of JPC from the assessable value. The Appellant has followed this Order for their clearance during March 1992 to May 1993. In the absence of any Stay or adverse Order against this OIO during the period March 1992 to May 1993, it has to be concluded that the Appellant has followed the finalized price list which was available with them during that period. This being so, the Commissioner (Appeals) has set aside the OIO dated 11/12/1992 vide his OIA dated 19/04/1994. On goi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assistant Commissioner was finalized only after the OIA was passed on 19/04/1994, even from this date of OIA i.e. 19/04/1994, there is delay of more than 22 months in issuing the Show Cause Notice. 15. After going through the relevant paragraph of the judgment of the Hon'ble Supreme Court, in the case of Mafatlal Industries Ltd., it is seen that the Apex Court has made it clear that what is applicable to the assesse is made equally applicable to the Revenue also. Therefore, the Revenue cannot take the pleading that the provisions of Section 11A are not applicable to them in case of finalization of provisionally assessed RT-12 Returns. 16. In this case, we also note that the finalization of RT-12 for the period in question was complete ..... X X X X Extracts X X X X X X X X Extracts X X X X
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