1998 (9) TMI 338

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....fer, hence both were heard together and are being considered in this common order. 2. Appeal No. 2885/88-A : Heard ld. JDR, Mrs. Aruna Gupta for appellant (Revenue) and learned Advocate Shri T.S. Balasubramanian for respondents. 3. Briefly, the issue originated in 1976 when by an Order-in-Original, an amount of Rs. 150/- per vehicle was added to its assessable value on (a) after sales service by dealers (b) Warranty repairs by dealers (c) Pre-delivery inspection by dealers. Vide Order-in-Appeal No. 1001/76, dated 16-6-1976, the first appellate authority upheld the original order, and vide Order-in-Revision No. 1124/78, dated 28-9-1978, the Government upheld the Order-in-Appeal. Thereafter present respondents filed Writ Petit....

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....tice dated 27-12-1985, but withdrew the same on 24-3-1986. 7. Meanwhile, Hon'ble High Court at Madras passed Final Order in W.P. No. 4050/79, dated 8-1-1985, wherein, it was ordered that :- (a) Order-in-Original and Order-in-Appeal is set aside; (b) Matter remanded to Assistant Collector of Central Excise for de novo consideration including following : (i) whether dealers were related persons as per Section 4(4)(c), and (ii) whether Rs. 150/- was includible in Assessable Value in view of Hon'ble Supreme Court decision in Bombay Tyres International [1983 (14) E.L.T. 1896 (S.C.) = AIR 1984 S.C. 420]. 8. The Assistant Collector of Central Excise considered the entire issue (on remand) and Order-i....

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....merits is the same as in the Order-in-Original. He finds that the ratio of case law of M/s. TAFE (supra) is squarely applicable here and, therefore, PDI/After sales service charges are includible in the Assessable value. However, on (ii) above, he holds that the show cause notice dated 19-12-1986 does not specify under which law demands are proposed - Rule 9(B) or Section 11(A). If Rule 9(B) would apply then time limit under Section 11(A) is not attracted. Since this was a matter of fact and such facts were not clearly delineated and recorded in the Order-in-Original, therefore, the same was set aside and matter remanded to Assistant Collector of Central Excise for reconsidering the matter afresh and recording a clear finding on facts wheth....

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....nd the records of the case. The moot point to be decided is whether the impugned order errs in remanding the matter of provisional assessment to the Assistant Collector to reconsider whether all disputes were finalised or only some parts of the dispute were finalised, as no findings are required to be given on the question of related persons. Rule 9(B) has two main operative parts. The first concerns the application and commencement of provisional assessments only in certain specified situations. There is no dispute on whether the provisional assessment was correctly resorted to or not. Therefore, there is no need to examine this first part of Rule 9(B). But we do note that it has consistently been held by various judicial authorities that ....

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....gree with the learned DR that such provisional assessment can be finalised in piecemeal, for the following reasons :- (i) Rule 9B(5) clearly provides for only one finalisation order to be passed, as discussed above; (ii) Since no time limit is prescribed for finalisation, the logical conclusion is that, since only one order is required to be passed, the Assistant Collector shall wait till all the issues which led to the initiation of provisional assessment are sufficiently resolved on facts to his satisfaction, before he attempts to finalise it, and (iii) Since it is settled law that once an assessment is provisional, it is so on all counts, i.e., as a whole, therefore the converse of it is clearly applicable; that o....