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2007 (5) TMI 415

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..... However, for the period 2001-02 and 2002-03, they have not treated the clearance of goods and payment of duty thereon by the assessee to be provisional, which is on the ground that the requirements of Rule 7 of the Central Excise Rules 2001/2002 were not fulfilled by them. Appeal No. E/477/2005 filed by the assessee is directed against the said decision of the Commissioner (Appeals). Treating the assessments for the above period to be final, the department issued show-cause notices to the assessee denying them abatement, from assessable value, of equalized freight, free service charges and turnover tax and demanding differential duty on the differential value of the goods. These demands were contested by the assessee on merits as well as on the ground that the assessments were provisional. In adjudication of the dispute relating to turnover tax, the Commissioner held against the assessee and hence the latter's appeal No. E/302/2005. In adjudication of the dispute relating to equalized freight, the Assistant Commissioner held against the assessee, but, in appeal, the Commissioner (Appeals) held in their favour. Appeal No. E/767/2004 filed by the Revenue is directed against the dec....

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....The authorities found that no such application had been made by the assessee for the aforesaid period. They noted that it was only on 17-8-2003 that the assessee filed such an application with the Assistant Commissioner. It is also on record that, on the strength of the assessee's application dated 17-8-2003, the Assistant Commissioner permitted provisional assessment in terms of Rule 7 ibid for the period 2003-04. The case of the assessee is that they had, in fact, submitted a letter dated 27-9-2001 to the Superintendent of Central Excise claiming provisional assessment. In that letter, they had also claimed deductions of turnover tax, freight, free service charges etc. for the purpose of arriving at the assessable value. On this basis, learned Counsel has contested the finding that no request for provisional assessment was made by the assessee for the period of dispute. It has also been pointed out by learned Counsel that the bond executed and bank guarantee furnished prior to 1-4-2001 in terms of the erstwhile Rule 9B were allowed to continue to be in force beyond the said date for purposes of Rule 7 of the Central Excise Rules 2001/2002. The monthly returns filed by the assesse....

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....iso to Rule 9B(1) is absent under Rule 7. The second proviso to Rule 9B(1) reads as under :- "Provided further that the proper officer where he is satisfied that the self-assessment made by the assessee is not in order, he may direct him to resort to provisional assessment and on receipt of such directions the assessee shall comply with such directions." It has been pointed out by learned SDR that the monthly returns in ER - I Form filed by the assessee during the period of dispute were all memoranda of self-assessments. Under the old rule, the proper officer could have directed the assessee to make provisional assessment if the former was satisfied that the self-assessment made by the latter was not in order. The proper officer has no such power under Rule 7 which lacks a provision similar to the second proviso to Rule 9B(1). In this scenario, learned SDR argued, the self-assessment made by the assessee during the period of dispute can hardly be deemed to be provisional. This argument does not appeal to us inasmuch as (a) the lower authorities have not rebutted the fact that the assessee had applied for permission for self-assessment as early as on 27-9-2001; (b) they have accep....

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....pra). Both these decisions of the Apex Court were considered by a Larger Bench of this Tribunal in the case of Rajeev Mardia v. CCE - 2001 (129) E.L.T. 334 (Tri. LB), wherein certain payments of duty made by the assessee pending approval of classification list were treated as provisional under Rule 9B of the Central Excise Rules, 1944 and it was held that strict compliance with the procedure laid down under the said rule was not mandatory for the purpose of showing that the assessments were provisional. In the case of Madura Coats Ltd. v. Commissioner - 2003 (161) E.L.T. 984 (Tri. Chennai), the assessee had claimed abatement of equalized freight, turnover tax, etc. and had cleared their goods on payment of duty provisionally. The Tribunal held that as information regarding exact amounts for abatement was not available at the time of clearance of goods from the factory gate to depot, the assessments were to be treated as provisional under Rule 9B of the Central Excise Rules, 1944 notwithstanding the fact that there was no formal order of the Assistant/Deputy Commissioner under the said rule permitting provisional assessment. In the case of CCE v. Kurool Cylinders Pvt. Ltd., 2007 (78....

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....sion for provisional assessment as early as on 27-9-2001. 6. Learned Counsel has also argued that the view taken by the Apex Court without stating reasons in the case of Hindustan National Glass & Industries (supra) cannot be taken as a ruling with universal application. We cannot countenance this argument which offends Article 141 of the Constitution of India. What the Apex Court did in the case of Hindustan National Glass & Industries (supra) was to follow Metal Forgings (supra), wherein it had been held by the court that an order under Rule 9B of the Central Excise Rules, 1944 and payment of duty on provisional basis were essential to establish that the assessments were provisional. The assessee in the present case had actually applied for permission under Rule 7 of the Central Excise Rules, 2001 for provisional assessment for the period of dispute on the ground that the amounts of equalized freight, turnover tax, free service charge etc. were not known at the time of clearance of the goods. The fact is that this request dated 27-9-2001 was not acted upon and no formal order for provisional assessment was made by the proper officer of Central Excise. On the ground stated b....