TMI Blog2000 (5) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... pproved for a long period. During the inter regnum, how the payment of duty has to be dealt with, was considered by their Lordships. It was taken that the amount of duty paid was obviously provisional and subject to the result of the final approval by the authorities concerned. Their Lordship took the view that "clearance of the goods made by the appellants between the date of filing the classification lists and the date of approval by the Departmental authorities were in accordance with the procedure for provisional assessment." Consequently, it was observed that in such a situation, provisions contained in Section 11B of the Act apply, where a claim for refund of the excess amount of duty is made by the manufacturer. The observation of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them from their sales depots over the amounts shown as the factory gate sale price; after hearing, the demand was confirmed by the Commissioner on 11-12-1997 and penalty was imposed. 2.2. Being aggrieved and dissatisfied with this order, the appellants have taken the following grounds in their appeal filed in the Tribunal that : (i) There was no misdeclaration in the price list in Part I and II of the file during 1993-94 and 1994-95 as duty was paid according to M.R.F. Ltd. decision of the Hon'ble Supreme Court and thereafter goods were cleared to the depots. The price list filed in which only the duty was paid included the costs which were required till 8-5-1995 as per the law in the order passed by the Hon'ble Supreme Court reported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Assistant Commissioner order dated 29-9-1995 brought to the notice of the Commissioner clearly recorded that RT 12 could not be finalised for want of information. However, no information required was mentioned and since no information was wanting from the appellants, therefore, for the period 1993-94, there was no order of provisional assessment. As regards the period from 1-4-1995 onwards the assessment would be provisional as per Rule 9B only in the situation enumerated under that Rule and in this case no such situation enumerated under that Rule is satisfied. If the assessments are found to be provisional the question of misstatement or suppression cannot arise. (vii) Even if the assessments are held to be provisional the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... double jeopardise. 2.3. Rule 9B of the Central Excise Rules states with the non obstante clause viz. "Notwithstanding anything contained in these rules, and thereafter it stipulates the situations under which "direction" can be issued by the proper officer that duty leviable on such goods shall be assessed provisionally on rates and value to be indicated by him on the assessee executing a Bond for the differential duty. Sub-rule (3) empowers the Collector to vary the terms and nature of Bond while sub-rule (4) permits the clearance of the goods provisionally assessed. Sub-rule (5) provides 'the duty to be assessed finally' and empowers consequential refund or demands of payments. 2.4. Rules 173B(2A), 173C(5) empower the proper officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore provisional for all purposes i.e. demands or refunds. 2.6 The 'orders' for provisional assessment therefore in our considered view are mandatory requirements of clearances under rule 9B(4) or 173F except in situations covered under rule 173CC. Bond execution is not found to be mandatory since the Bond conditions could be altered and are found to be only to 'safeguard' revenue in case of an unexecuted demand. 3. In this view of the matter we find that in the case of Samrat International [1992 (58) E.L.T. 561 (S.C.)] the finding of the Hon'ble Supreme Court - ".....The amount of duty paid by him was obviously provisional and subject to result of final approval by the officer concerned. ... "only confirms the provisions of the law ..... X X X X Extracts X X X X X X X X Extracts X X X X
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