1989 (3) TMI 214 - AT - Central Excise

Issues Involved:
1. Maintainability of the appeal against a provisional assessment order.
2. Grant of stay for future clearances.

Detailed Analysis:

1. Maintainability of the Appeal Against a Provisional Assessment Order:

The appellants, M/s. Indian Aluminium Cables Ltd., filed an appeal against the order of the Collector of Central Excise (Appeals), who dismissed their appeal on the grounds of it being infructuous as the price lists were provisionally approved and the assessments were not final. The Assistant Collector had provisionally approved the price lists, leading to the appellants seeking appeal. The key issue was whether an appeal is maintainable against a provisional assessment order.

Shri V. Sridharan, representing the appellants, argued that the appeal is maintainable under Section 35 of the Central Excises and Salt Act, 1944, which allows appeals against any decision or order by a Central Excise Officer lower in rank than a Collector of Central Excise. He cited the Gujarat High Court judgment in the case of Jamnadas Chhotalal Desai and Others v. C.L. Nangia and Others to support his argument.

Shri A.S.R. Nair, representing the respondents, contended that no appeal is maintainable against a provisional assessment order, as it is not a final decision.

The Tribunal examined the statutory provisions, including Sections 35 and 35B of the Central Excises and Salt Act, 1944, and Rule 2(ia) of the Central Excise Rules, 1944, which defines assessment to include provisional assessment under Rule 9B. The Tribunal referred to the judgment in Mahindra & Mahindra Limited v. Collector of Central Excise, Bombay-1, where it was held that provisional assessments are considered assessments under the Act.

The Tribunal concluded that the appeal was maintainable, as the provisional assessment order by the Assistant Collector was a decision under the Act, and thus, appealable to the Collector (Appeals).

2. Grant of Stay for Future Clearances:

The appellants also sought a stay for future clearances, arguing that there was a recurring effect and no demand had been quantified. Shri V. Sridharan emphasized that the Tribunal has the power to grant such a stay.

The Tribunal, while acknowledging its power to grant stays for future clearances, decided against it in this case. The Tribunal noted that there was no quantification of demand, and thus, no order under Section 35F was warranted. The Tribunal found that the facts and circumstances did not justify exercising inherent powers to grant the stay requested by the appellants.

However, recognizing the recurring effect, the Tribunal ordered an early hearing of the matter, scheduling it for the first week of July 1989, and directed the Registry to issue notices of hearing.

Separate Judgment by Member (T):

While agreeing with the conclusion that the appeal is maintainable, Member (T) provided additional reasoning. He noted that the appeal is maintainable under Section 35B(1)(b) of the Act, as it pertains to an order passed by the Collector (Appeals) under Section 35A. He emphasized that the provisional approval of the price-list under Rule 173C(5) read with Rule 9B is an order under the Act, thus appealable.

Member (T) concurred with the decision not to grant a stay for future clearances and supported the order for an early hearing.

Conclusion:

The Tribunal held that the appeal against the provisional assessment order was maintainable. However, it denied the request for a stay on future clearances but ordered an early hearing of the matter.

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