1999 (8) TMI 967 - AT - Central Excise

Summary

Issues Involved:
1. Provisional assessment under Rule 9B.
2. Adjustment of excess duties paid against short-paid duties.
3. Requirement of refund claim under Section 11B post 20-11-96.

Issue-wise Detailed Analysis:

1. Provisional Assessment under Rule 9B:
The dispute centers on the abatements claimed by the assessee-appellants on items like freight, Octroi, Turnover tax, and trade discounts for goods cleared from factories to depots. The assessee argued that due to the nature of their marketing pattern, the necessary information to compute abatements was not readily available at the time of clearance from the factory gates. Despite this, the Assistant Commissioners at Tirunelveli and Madurai-I did not resort to provisional assessment under Rule 9B, while the Assistant Commissioner at Tuticorin allowed provisional assessment but did not adjust excess duties paid. The Tribunal found that the Commissioner (Appeals) correctly deemed these assessments as provisional, supported by the Tribunal's decision in the case of M/s. Balaji Cement Products and the Hon'ble Apex Court's decisions in Samrat International (P) Ltd. and M/s. Serai Kella Glass Works (P) Ltd., which held that self-assessed duties are provisional and need finalization.

2. Adjustment of Excess Duties Paid Against Short-Paid Duties:
The Tribunal agreed with the Commissioner (Appeals) that the duties paid in excess should be adjusted against those found short-paid. Rule 9B(5) mandates this adjustment, and it is also supported by the Apex Court's rulings in Samrat International and Serai Kella Glass Works. The Tribunal emphasized that the Commissioner (Appeals) rightly applied these legal principles, ensuring that excess payments should be adjusted without requiring a refund claim under Section 11B.

3. Requirement of Refund Claim under Section 11B Post 20-11-96:
The Tribunal disagreed with the Commissioner (Appeals) on the necessity of filing a refund claim under Section 11B post 20-11-96 due to the substitution of Rule 173-I. The Tribunal clarified that Rule 173-I is procedural and independent of Rule 9B. Provisional assessments under Rule 9B(5) should continue unaffected by changes in Rule 173-I. Consequently, the Tribunal modified the Order-in-Appeal to reflect that provisional assessments would continue post 20-11-96 without requiring a refund claim under Section 11B.

Conclusion:
The Tribunal dismissed the Revenue's appeals and allowed the assessee's appeals, modifying the Orders-in-Appeal to ensure that provisional assessments under Rule 9B continue post 20-11-96. The Original Authorities were directed to re-compute short-levies and excess levies for the entire period covered by the appeals, adjusting any excess payments against short-payments without requiring further refund applications or show cause notices.