2008 (3) TMI 257

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....hri T.C. Raja Dass, SDR for the Revenue. 3. We heard both sides. The appellants are the manufacturers of electric wires and cables which are excisable. They were assessing the underground telephone cables manufactured by them under the erstwhile Rule 9B of Central Excise Rules, 1944 on a provisional basis vide Clause (d) of the assessment memorandum. On receipt of the RT-12s for the period from October 1996 to February 1998, the Range Superintendent made an endorsement in the assessment memorandum in the following manner "that the procedure laid down under Rule 9B has not been followed and the assessment cannot be made provisional". A show cause notice was issued to the appellants for denial of the provisional assessment on the ground th....

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....nt of Telecommunication (DoT). The contract entered by the appellant with the purchasers namely DoT contain price variation clause. In terms of the contract, the price could be settled at appropriate level if the value of the copper in the goods supplied were to be revised. In view of the above position, it was urged that the prices at which the goods are initially supplied to DoT are necessarily provisional. The revision of price was taking place as a matter of routine occurrence over the years. The appellants executed a Bond for the preceding period for provisional assessment and in fact, refund of Rs. 1,73,04,874/- was granted in the order dated 17-6-97. However for the subsequent period, the department rejected the provisional assessmen....

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....sment. He also relied on the Tribunal's decision in the case of Hindustan Wires Ltd. v. CCE, Delhi-II - 2003 (151) E.L.T. 679 (Tri.-Del.) wherein it was held that formal request for provisional assessment in terms of Rule 9B is very necessary. 6. On a very careful consideration of the facts, we find that the price at which the appellants initially cleared the goods were not final. On this point, there, is no dispute. In fact, the appellants have produced evidence to show that prior to the period of dispute in this appeal they had been furnishing Bonds along with security. The only reason for denying the provisional assessment facility is that the proper officer did not give the necessary order and also the appellants did not follow the p....