TaxTMI 
TaxTMI 
2024 (6) TMI 179
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....les' and 'copper wire' among other excisable goods and had been clearing 'intermediate products' to their factories at Urse and Goa on payment of duties of central excise and, owing to the nature of relationship as well as intended use of the 'intermediate products', at assessable value computed according to rule 8 of Central Excise (Determination of Price of Excisable Goods) Rules, 2000 before and since. Based on costing of the product at the end of each year, the assessable value was revised for ascertainment of additional duty liability which was being duly discharged for each year, along with interest and that practice was being continued when the jurisdictional authority intervened with order to deem the assessment, and unilaterally, as provisional. 2. That order was carried to the first appellate authority for inconsistency with the very provision in law that had been invoked by the Assistant Commissioner of Central Excise and it was held that '7. The facts of the case reveal that the goods are being cleared for captive consumption and the Appellants were unable to determine value under Section 4 of the Central Excise Act, 1944 for the purposes of charging Central Excise d....
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....is not legally correct. Rule 7(3) of the Rules empowers the jurisdictional Asstt. Commissioner to issue the Provisional Assessment Order and it is not warranted to issue a Show Cause Notice for doing so.' leading to appeal of M/s Finolex Cables Ltd. 3. However, on a similar order of the jurisdictional Assistant Commissioner of Central Excise pertaining to clearance of 'polyvinyl chloride compound' from their Chinchwad unit to their unit at Urse for the same period of dispute, the first appellate authority vide its order [order-in-appeal no. PUN-EXCUS-001-APP-121-13-14 dated 18th October 2013] took a contrary stand thus '8. In the instant case the Appellants have not requested for the Provisional Assessment under Rule 7 of the Rules and the jurisdictional Asstt, Commissioner has issued Provisional Assessment Order dtd. 18-01-2013. The Appellants have argued that the Order of Provisional Assessment cannot be issued suo moto in the absence of a request by them. I find that the matter has been clarified vide Board's instructions appearing in Part IV of Chapter 3 the CBE &C Central Excise Manual. For ease of reference the relevant portion of the said instructions '3,1 Rule....
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.... reporting discharge of duty liability for each month. Opting for 'provisional assessment' on the available ground of 'Rule 7. Provisional Assessment - (1) Where the assessee is unable to determine the value of excisable goods or determine the rate of duty applicable thereto, he may request the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, in writing giving reasons for payment of duty on provisional basis and the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, may order allowing payment of duty on provisional basis at such rate or on such value as may be specified by him. (2) The payment of duty on provisional basis may be allowed, if the assessee executes a bond in the form prescribed by notification by the Board with such surety or security in such amount as the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, deem fit, binding the assessee for payment of difference between the amount of duty as may be finally assessed and the amount of duty provisionally assessed. (3) The Assistant Commissioner of ....
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....s this very foundation that led the Tribunal to hold that '4. We have perused Rules 7 of the Central Excise Rules, 2002. Sub-rule (1) of such Rules states that "where the assessee is unable to determine the value of the excisable goods or determine of the rate of duty applicable thereto, he may request the Assistant Commissioner of Central Excise in writing giving reasons for payment of duty on provisional basis and the Assistant Commissioner may order allowing payment of duty on provisional basis at such rate or on such value as may be specified by him." If such permission is granted, the rule provides Air execution of a Bond by the assessee with such surety or security as the said Assistant Commissioner may specify. The Rule further provides that where the provisional assessment has been sought, the Assistant Commissioner of Central Excise shall pass order for final assessment as soon as may be. The C.B.E. & C. Manual also, in para 3.1 thereof, states that Rule 7 of the Central Excise Rules does not provide for the department, suo motu, issuing directions for resorting to provisional assessment. Therefore, when the Central Excise officers, during the scrutiny or otherwise, find....
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....basis of previous quarterly result also. The Appellants have appropriately taken cost figures of the previous month's CAS-4 certificates as a basis to arrive at the cost of production of each month. There was no objection whatsoever by the department at any point of time. For the first time in February 2008, during the course of audit for the period April 2006 to March 2007, this practice was objected and the Appellants were asked to redetermine cost of production on the basis of final annual CAS-4 of April 2006 to March 2007. 4.4 If the Appellants are to value their clearance on the basis of annual CAS-4 figures, they have paid excess duty in some instances as is admitted in the show cause notice, order in original and the impugned order. Further the both the authorities have concluded in the order against adjustment of the excess payment of duty against short payment on the ground of unjust enrichment. Both authorities also hold that the assessments were provisional. The stand of the lower authorities is self contradictory and contrary to the observations made by the Hon'ble Apex Court in case of Mafatlal Industries [1997 (89) ELT 247 (SC)] para 95, reproduced below : "9....