TaxTMI 
TaxTMI 
2012 (3) TMI 327
X X X X Extracts X X X X
X X X X Extracts X X X X
....CET' for short) attracting basic excise duty ('BED' for short) at 15% and special excise duty ('SED' for short) at 5% of BED. Accordingly, the assessee had filed classification list No.15/90-91 on 20/3/1990 seeking classification of the above goods under Chapter Heading 8548.00 of the CET. Pending finalisation of the classification list, the assessee cleared the goods on payment of BED at 15% and SED at 5% of BED. 3) Even before the classification list filed on 20/3/1990 was approved, the Superintendent of Central Excise by his letter dated 1/11/1990 called upon the assessee to classify the goods in question under tariff heading 8505.00 of the CET as per trade notice No.283/90 issued by the Additional Collector of Central Excise and Customs, Pune and pay duty accordingly. By a show cause notice dated 1/11/1990, the Supdt. of Central Excise and Customs called upon the assessee to show cause as to why the goods in question cleared during the period from May, 1990 to October, 1990 should not be held classifiable under C. H. No.8505.00 attracting 20% BED and SED at 5% of BED and why the differential duty should not be recovered under Section 11A of the Central Excise Act, 1944 Act (....
X X X X Extracts X X X X
X X X X Extracts X X X X
....st was confirmed under Section 11AA of the 1944 Act. The appeal filed by the assessee against the said order dated 28/8/2000 was dismissed by the Commissioner of Central Excise (Appeals), Pune on 18/6/2003. Further appeal filed by the assessee before the CESTAT was also dismissed by the Tribunal on 10/2/2004. Challenging the aforesaid appeal, the present appeal is filed by the assessee. 8) Mr. Sridharan, learned senior Advocate appearing on behalf of the appellant-assessee submitted that the liability to pay interest under Section 11AA of the 1944 Act arises when a person chargeable with duty determined under Section 11A(2) of the Act fails to pay such duty within three months from the date of such determination. In the present case, he submits that during the period from May, 1990 to 4/11/1990 the goods in question were cleared under provisional assessment under Rule 9B of the 1944 Rules and, therefore, final assessments were required to be made under Rule 9B of the 1944 Rules and not under Section 11A of the 1944 Act. Even though the assessment order passed on 8/10/1993 erroneously records that the assessment has been finalised under Section 11A of the 1944 Act, in fact the as....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and, therefore, the interest provisions contained under Section 11AA are not applicable to the facts of the present case. Accordingly, Mr. Sridharan submitted that the impugned orders passed by the authorities below being contrary to law are liable to be set aside. 11) Mr. Asokan, learned counsel appearing on behalf of the Revenue submitted that in the present case admittedly the show cause notices dated 1/11/1990 and 20/3/1991 were issued under Section 11A of the Act and even the assessment order was passed on 8/10/1993 under Section 11A of the Act and, therefore, the authorities below were justified in demanding interest under Section 11AA of the Act. Mr. Asokan conceded that where the goods are cleared on provisional assessments, the final assessment would have to be made under Rule 9B and not under Section 11AA of the 1944 Act. However, since the assessment in the present case, has been made under Section 11A, the assessee would be liable to pay interest under Section 11AA of the Act. 12) After hearing both the parties, we were inclined to allow the appeal as there was no dispute regarding clearance of goods in question under provisional assessment. Accordingly, on conclu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uld, subject to the provisions of Rule 173CC, permit the assessee to avail the procedure prescribed under Rule 9B for provisional assessment of the goods. In other words, pending approval of the classification list, clearances could be made either under Rule 173CC or under Rule 9B of 1944 Rules. 18) In the present case, on perusal of the assessment order dated 8/10/1993, it is seen that the specific case of the assessee before the adjudicating authority was that there was no provisional assessment under Rule 9B and that Rule 9B was not applicable to the present case. Even before the Commissioner (Appeals), no plea was raised regarding clearance of the goods under provisional assessment. In the memo of appeal before the CESTAT, it was for the first time contended that the clearances of the goods pending approval of classification list should be deemed to have been assessed provisionally under Rule 9B and hence duty determined as payable on finalisation of such provisional assessment would not be covered under Section 11AA of the Act. 19) The Tribunal by the impugned order dated 10/2/2004 declined to entertain the plea of provisional assessment as that plea was raised for the f....