2019 (4) TMI 997 - AT - Central Excise

Tribunal overturns denial of provisional assessment, finds treatment discrepancies

The Tribunal found the denial of provisional assessment under Rule 7 of the Central Excise Rules, 2002 to be legally incorrect. The appellant, engaged in ... Rejection of request for provisional assessment - Rule 7 of the Central Excise Rules 2002  - Order passed without issuance of SCN - Principles of natural justice - Valuation as per Rule 4(1)(b) of the Central Excise Act, 1944 - appellant was not aware of the various discounts offered by the CEAT - job-work - HELD THAT:- Provisional assessment has been allowed to various dealers of the CEAT and those orders have also been placed on record by the appellant which clearly shows that in the facts and circumstances of the appellant, provisional assessment is required because the actual price to be realized from the customer is not known on account of the fact that the CEAT offers various categories of discounts to its customers. Denial of provisional assessment by both authorities is not in accordance with law - appeal allowed - decided in favor of appellant. Issues:- Denial of request for provisional assessment under Rule 7 of the Central Excise Rules, 2002- Violation of principles of natural justice in rejecting the request without issuing a show-cause notice- Discrepancy in treatment of provisional assessment requests among different job workers of CEAT- Contradictory observations in the impugned order regarding the appellant's ability to ascertain the price of goods- Applicability of Rule 4(1)(b) of the Central Excise Act, 1944 in determining excise dutyAnalysis:Denial of Provisional Assessment Request:The appellant, engaged in manufacturing tires on a job-work basis, sought provisional assessment under Rule 7 of the Central Excise Rules, 2002 due to the complex nature of determining the assessable value of final products sold to CEAT. The original authority rejected this request without issuing a show-cause notice, leading to a challenge before the Commissioner (Appeals).Violation of Principles of Natural Justice:The learned counsel for the appellant argued that the denial of provisional assessment lacked legal sustainability and violated principles of natural justice. The appellant's inability to determine the correct assessable value of goods due to various discounts offered by CEAT was a crucial factor in seeking provisional assessment.Discrepancy in Treatment of Provisional Assessment Requests:The appellant highlighted that other job workers of CEAT had been granted provisional assessment at various locations, presenting specific provisional assessment orders as evidence. This raised concerns about inconsistent treatment among CEAT's job workers and the need for uniformity in such cases.Contradictory Observations in the Impugned Order:The impugned order contained contradictory observations regarding the appellant's ability to ascertain the price of goods sold to CEAT. While initially suggesting a lack of supporting documents for provisional assessment, the order later acknowledged the appellant's capacity to determine the price as per the relevant rules, creating ambiguity in the decision-making process.Applicability of Rule 4(1)(b) of the Central Excise Act:In considering the appeal, the Tribunal noted that the appellant's situation warranted provisional assessment due to the uncertainty surrounding the final price realization from customers, attributed to various discounts offered by CEAT. The Tribunal found the denial of provisional assessment by both authorities to be legally incorrect, ultimately allowing the appellant's appeal and setting aside the impugned order.