2015 (12) TMI 1401 - AT - Central Excise

Denial of provisional assessment of the goods as per the provisions of Rule 7 of the Central Excise Rules, 2002 - Held that - Legislature intent is very clear inasmuch as regards the provisional assessment is concerned, which is indicative that the Assistant Commissioner or the Dy. Commissioner of Central Excise, as the case may be, may order allowing payment of duty on provisional basis. There cannot be any other view from the plain reading of the provisions as reproduced herein above. In the case in hand, rejection of request of provisional assessment only for not providing the records to finalize assessment, cannot be a reason as the department in many cases have undertaken the exercise of finalizing the provisional assessment belatedly. Secondly, the reliance placed by the first appellate authority as well as the learned AR on the decision of the Hon ble High Court of Kolkata is totally misplaced as the same is in respect of the provisions of Section 18 of the Customs Act, 1962 asking the provisions assessment of duty on direction of the proper officer. That is to say when an import takes place, assessee cannot claim provisional assessment as matter of right. While the Central Excise Act and the Rules made thereunder (the provisions of Rule 7) which are reproduced herein above, authorized the Assistant Commissioner or Dy. Commissioner of Central Excise to allow the clearance of the goods on provisional assessment. - Decided in favour of assessee.

Summary

Issues Involved:
Denial of provisional assessment under Rule 7 of the Central Excise Rules, 2002.

Analysis:
The appeal challenged the Order-in-Appeal denying provisional assessment of goods under Rule 7 of the Central Excise Rules, 2002. The appellant had requested provisional assessment for the year 2009, but the adjudicating authority rejected it, citing lack of cooperation in finalizing assessments from 1996 to 2008. Both the first appellate authority and the lower authorities upheld this decision. The appellant argued that they had provided all necessary records for finalizing assessments from 1996 onwards. The appellant contended that the lower authorities misinterpreted Rule 7 of the Central Excise Rules, 2002. The appellant highlighted that the provision allows for payment of duty on a provisional basis upon request, indicating that the Assistant Commissioner or Deputy Commissioner of Central Excise has the authority to order provisional assessment. The judgment clarified that the rejection of provisional assessment solely based on the lack of records for finalizing assessments was not a valid reason, as the department could finalize assessments later. The judgment distinguished the case from a High Court decision related to the Customs Act, emphasizing that the Central Excise Act and Rule 7 permit clearance of goods on provisional assessment. Ultimately, the impugned order was set aside, and the appeal was allowed.