TaxTMI 
TaxTMI 
2009 (12) TMI 794
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.... 2. It is the case of the department that the appellants filed classification list in the year 1986, classifying the impugned goods under sub-heading 5905.20, which was approved provisionally as there was dispute regarding classification of the product. Accordingly, the relevant RT-12 returns were also assessed provisionally. The appellants letter dated 26-9-86 also clearly indicated that the assessment was provisional. The case of the appellants, on the other hand, is that the proper officer never issued an order under Rule 9B of the Central Excise Rules, 1944, directing provisional assessment and executing the necessary B-13 bond. The lower appellate authority has held that the assessment for the impugned period 1-3-1986 to 28-2-87 was pr....
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....proved, the assessee was clearing the goods by determining the duty himself and debiting the amount of duty in his personal ledger account. The amount of duty paid by him was obviously provisional and subject to the result of the final approval by the officer concerned. This is the procedure prescribed under Rule 9B except for the circumstance that no bond as provided in Rule 9B is required in a case where the personal ledger account is maintained for the clearance of the goods, since there is always a balance in the account current sufficient to cover the duty that may be demanded on the goods intended to be removed at any time. In these circumstances, the clearance of goods made by the appellant between 1st April and 3rd of June, 1985 wer....
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....the appellants will have to establish before the departmental authorities when the matter goes back to the departmental authorities for considering the claim of the appellants for refund under the ratio of Mafatlal Industries' case (supra). If the appellants succeed in establishing that the payment of duty which was made by them for the period in question was a provisional payment, they shall be entitled to the benefit of the ratio of the judgment of this Court in Samrat International's case (supra). 3. Rajiv Mardia v. CCE, Indore, 2000 (118) E.L.T. 627 (Tri.-LB) In this case, the five member Bench of the Tribunal held that the decision of the Supreme Court in the case of Samrat (supra) applies even to cases of demand. It was further ....
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....our opinion there is no material in the instant case to establish the fact that either there was a provisional classification or there was an order made under Rule 9B empowering the clearance on the basis of such provisional classification. In the absence of the same, we cannot accept the argument of the Revenue that in fact the order of the Assistant Collector dated 21-1-1976 is a provisional order based on which clearance was made by the appellants or that they paid duty on that basis. On the contrary, as held by the Judicial Member the said order of classification was a final order, therefore, the Revenue cannot contend the limitation prescribed under Section 11A does not apply." 4. We find that in the case of Metal Forgings (supra), ....
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....ve indicated that they were instructed by the jurisdictional Range Superintendent that no goods should be cleared on the basis of revised classification list till the approval of the same and that as instructed they have been continuing to clear the impugned goods under the provisionally approved classification list. They have also requested the department to kindly note that they are paying duty as directed under protest. 7. The factual details as enumerated above, leaves us in no doubt that there was a provisional classification and that the clearances and duty payment were done provisionally. Hence, this case, meets the test laid down under the Hon'ble Supreme Court decision in the case of Metal Forgings (supra) which clearly held tha....