TaxTMI 
TaxTMI 
2024 (6) TMI 370
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....1. Since it was not possible to ascertain the exact value of goods, due to different sales tax and discount rates at different RWH/ SPDs from where the goods were actually sold, the Appellant resorted to provisional assessment starting April 2001, adopting the following methodology: Provisional assessment of value at the time of clearance (in excise invoice) Final assessment of value UMRP less provisional discounts and sales tax (basis the previous year figures) UMRP less actual pre-dominant discounts and sales tax (basis the actual figures, supported by the CA Certificate) Note: invoices on sample basis were provided along with CA certificate and detailed workings reflecting invoice wise details. 2.3. The above methodology was approved by the Assistant Commissioner vide the Final Assessment Order-in-Original No. 03-MP/AC/PA/07-08 dated 28.05.2007 passed for the quarter April 2001 to June 2001, wherein the differential duty amounting to Rs. 1,32,981.42/- was worked out and paid by the Appellant and the methodology of working out the final assessment was approved. The said order has attained finality, having not been challenged by eith....
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.... by the department in previous order cannot be changed without any legal basis. • If the authorities feel shortcomings or deficiencies in the earlier practice, the proper course is to issue a SCN and pass a speaking order. • Matter is remanded with following directions: • If department seeks revision of terms of finalization, it is at liberty to issue SCN and proceed further in the matter, • Appellant to furnish details sought by the department, • If after going through the details, the department feels the methodology is liable to be changed, it may do so after following principles of natural justice. 07.03.2011 and 05.07.2011 Letters from department to produce relevant documents to the department. 12.07.2011 Apart from the documents already submitted [viz. CA certificate, detailed calculation sheet showing excise invoices and actual sales invoices for the entire period and sample invoices of sales from RWHs], the Appellant also furnished the statement of actual discount percentage and sales tax percentages for each month, for each location. 29.07.2011 ....
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....ide the impugned order confirmed the demand and upheld the underlying Order finalizing the provisional assessment on 'Best Judgement' method without considering the methodology already accepted by the Department for the period from April 2001 to June 2001 vide Order dated 28.05.2007, the CA certificate and the calculation sheet duly certified by the Chartered Accountant. 7. Aggrieved from the said order, the appellant is before us. 8. The Ld. Counsel for the appellant submits the provisional assessment finalized as per approved methodology and CA certificate cannot be disregarded for the subsequent period without pointing out the flaw in the said methodology. To support this contention, he relied on the decision of the Hon'ble Apex Court in the case of Commissioner of Central Excise, Pune-II v. SS Engineers, 2023VIL-68-SC-CE wherein it has been held that Department cannot adopt a stand in the subsequent period diverting from the stand taken in the previous period. 8.1. He further submitted that CA certificate cannot be disregarded without there being a concrete basis. To support this contention relied on the Supreme Industries Limited vs....
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....of provisional assessment, a Show Cause Notice is required to be issued. The said order was passed by the Ld. Commissioner (Appeals) on 21-08-2009, but the Show Cause Notice has been issued on 21-11-2011 which is beyond the normal period of limitation. As the appellant has not suppressed any fact or details from the Department, therefore the Show Cause Notice issued for the extended period of limitation is not sustainable at all. On this ground alone, the impugned order is required to be set aside. 12. We further take note of the fact that the Chartered Accountant has certified the calculations after verifying all the records for the impugned period and furnished a certificate for arriving at the finally assessed value. The same is required to be accepted by the ld. adjudicating authority, as if same is not acceptable, the ld. adjudicating authority was required to point out the discrepancies in the certificate issued by the Chartered Accountant, which is absent in this case. Therefore, the certificate issued by the Chartered Accountant cannot be discarded, as held by this Tribunal in the case of Supreme Industries Limited (supra) wherein it was held as under: - "....