TaxTMI 
TaxTMI 
TaxTMI 
2024 (8) TMI 714
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....ed in the manufacture of telecommunication equipment falling under Chapter 85 of the Central Excise Tariff Act, 1985. During the relevant period, they have approached the Department for clearance of the goods resorting to provisional assessment under Rule 9B of Central Excise Rules, 1944, since the value of the manufactured goods could not be determined as the price of the goods sold to Department of Telecommunications, Government of India against contracts, which provide various variation clauses on certain factors, finalised after a period of time from their final clearance from the factory. Consequently, their assessment was made provisional under Rule 9B of the Central Excise Rules, 1944 by an order dated 16.10.2001, which has been exte....
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....he demand confirmed, dropped issues relating to inclusion of value of software in the assessable value and also confirmation of duty on packing and forwarding charges by including its value in the total assessable value; however, rejected the appeal partly relating to confirmation of demand on account of disallowing the amounts claimed by the appellant on account of credit notes issued for wrong billing, short-supply, incorrect calculation of duty, price escalation etc. and corrigendum for deductions / adjustments from the total duty payable amounting to Rs.1,38,76,301/- along with interest. Hence, the present appeal. 3.1. At the outset, the learned advocate for the appellant has submitted that they are aggrieved by the impugned order to t....
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....and in CCE Vs. Allied Photographics India Ltd. [2004(166) ELT 3 (SC)]. 3.3. He has further submitted that there is a basic difference between duty paid under protest and duty paid under Rule 9B. The duty paid under protest falls under Section 11B whereas duty paid under provisional assessment falls under Rule 9B. Section 11B of CEA, 1944 deals with claim for refund whereas Rule 9B CER 1944 deals with making adjustment of duty on finalisation of assessment. In case of Rule 9B, the assessee need not comply with Section 11B; hence both operates in a difference sphere. 3.4. Further he has submitted that the burden of the excess differential duty was not passed on to their buyers during the material period. Referring to the purchase orders of ....
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....nd 5 supra. 8. The Superintendent of Central Excise, Dooravaninagar Range is hereby directed to finalise/scrutinise the assessment of RT 12/ER1 returns filed by the assessee in respect of the goods cleared during the year 2001-02 on the above basis, to quantify the differential duty payable, if any, by the assessee and raise a demand on the assessee in terms of sub-rule 9B(5) of the erstwhile Central Excise Rules, 1944 and Rule 7 of the Central Excise Rules, 2001. 9. The duty amount paid by the assessee subsequent to the clearance of the goods shall be appropriated towards demand indicated in the previous para. The assessee shall pay the remaining amount of duty along with interest leviable in terms of the said Rules, if any, due from the....
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....uently, the learned Commissioner (Appeals), dropped the excess amount relating to addition of packing and forwarding charges and value of software in arriving at the assessee value as proposed by the department. Applying the same principle he has also rejected the claim of the appellant that the excess amount of the duty, if any, paid due to various reasons, not raised at the time of finalisation of assessment under Rule 9B of Central Excise Rules, 1944, the Order of assessment being not challenged, cannot be raised at the quantification of demand. 11. We find that the learned Commissioner has confused between assessment and quantification. Once the provisional assessment is finalised taking note of the elements to be considered in determi....