2016 (4) TMI 193 - HC - Central Excise

Provisional assessment in terms of Rule 7 of the Central Excise Rules, 2002 - Held that - Since Rule 7 gives right to the assessee to apply for provisional assessment and for payment of duty on provisional basis, the learned Single Judge was justified in allowing the writ petition in passing order in terms of prayer (a) of the writ petition. Therefore, considering the facts and circumstances of the case and the submission advanced, no order is passed on this appeal. Accordingly, Deputy Commissioner of Central Excise and Service Tax, Durgapur, the proforma respondent No. 3 is directed to dispose of the application for provisional assessment filed in terms of Rule 7 of the Rules within four weeks from the date of presentation of a copy of the certified copy of this order by passing a reasoned order in accordance with law, to be communicated to the parties after giving an opportunity of hearing. At the time of hearing, the parties are at liberty to rely on judgments and orders in support of their contentions and the Deputy Commissioner in his reasoned order shall deal with the same.

Summary

Issues:
1. Appeal against order allowing clearance of excisable goods under provisional assessment.
2. Conflict between appeal filed before CESTAT and applications for provisional assessment.
3. Justification of allowing writ petition for clearance under Rule 7 of Central Excise Rules.
4. Directions for Deputy Commissioner to dispose of application for provisional assessment.

Analysis:
1. The appeal was filed against an order allowing the clearance of excisable goods under provisional assessment, as per Rule 7 of the Central Excise Rules, 2002. The Single Judge had granted the writ petition in favor of the petitioners, directing the respondents to allow such clearance and act in accordance with the law.

2. The conflict arose as the Department had filed an appeal before the CESTAT against the order passed by the Commissioner of Central Excise (Appeals), while the respondents had applications for provisional assessment pending. The respondents filed a writ petition seeking clearance of goods on provisional assessment basis under Rule 7, as stay application in the appeal was not informed to them.

3. The Court found that Rule 7 provides the right to the assessee to apply for provisional assessment and payment of duty on a provisional basis. Therefore, the Single Judge's decision to allow the writ petition for clearance under Rule 7 was deemed justified, considering the circumstances and submissions made by both parties.

4. The Deputy Commissioner of Central Excise and Service Tax, Durgapur, was directed to dispose of the pending applications for provisional assessment within four weeks, providing a reasoned order in accordance with the law. The CESTAT was instructed to proceed with the appeal independently, without being influenced by any observations in the current order, aiming for disposal within eight weeks from the date of the order.

In conclusion, the appeal was disposed of, and the application for clearance under provisional assessment was also disposed of, with directions given to the Deputy Commissioner and CESTAT for further proceedings in accordance with the law and the rights of the assessee under Rule 7 of the Central Excise Rules.