2004 (7) TMI 444 - AT - Central Excise

Summary

Issues:
1. Appeal against rejection of request for provisional assessment.
2. Interpretation of appealable order under Section 35B(1) of the Central Excise Act.
3. Consideration of existence of price escalation clause in the contract for final assessment.
4. Authority to handle requests for provisional assessment.
5. Granting facility of provisional assessment to the appellants.

Analysis:
1. The appeal before the Appellate Tribunal CESTAT, Mumbai was filed against the rejection of the appellant's request for provisional assessment by the Commissioner (Appeals). The rejection was based on the premise that there was no appealable order issued by the lower authority, specifically the Inspector of Central Excise, in response to the appellant's request.

2. The appellants had also submitted an order issued by the Assistant Commissioner, Central Excise Division-II, Nagpur, stating that there was no merit in the request for provisional assessment. The Assistant Commissioner directed the appellants to make self-assessment based on the contract price and pay duty on supplementary invoices without waiting for realization against such invoices. The Tribunal noted that the communication from the Inspector/Superintendent was on the direction of the Assistant Commissioner, who ultimately rejected the request.

3. The Tribunal considered the difficulty faced by the appellants in making a final assessment due to the existence of a price escalation clause in the contract. It held that the Commissioner (Appeals) erred in deeming the order non-appealable, as the communication from the Assistant Commissioner rejecting the request demonstrated otherwise. The Tribunal found the orders of the lower authorities unsustainable in light of the appellants' challenges and granted them the facility of provisional assessment.

4. In light of the difficulties faced by the appellants and the erroneous rejection of their request for provisional assessment, the Tribunal set aside the impugned orders and allowed the appeal. The Assistant Commissioner was directed to accept duty payments based on contract prices on a provisional assessment basis, to be finalized upon the completion of the contract price with the buyers.

This detailed analysis of the judgment highlights the issues involved, the Tribunal's reasoning, and the ultimate decision to grant the appellants the relief of provisional assessment based on the circumstances presented.