1998 (6) TMI 152 - AT - Central Excise

Summary

Issues:
Assessment of Nylon Fishnet Yarn under Notification No. 8/96-C.E., dated 23-7-1996; Provisional assessment under Rule 9B of Central Excise Rules, 1944; Self Assessment Scheme transition and its impact on assessment finalization.

Analysis:
The case involved a stay application for waiver of pre-deposit in an appeal concerning the assessment of Nylon Fishnet Yarn under Notification No. 8/96-C.E. The Assistant Commissioner had ordered provisional assessment under Rule 9B pending test results for the yarn. The dispute arose regarding the finalization of assessment from October onwards due to the introduction of the Self Assessment Scheme. The appellant argued that non-mention of provisional assessment details in the returns did not automatically finalize the assessment, as finalization required an order from the Assistant Commissioner.

The Tribunal considered the arguments and noted that the Assistant Commissioner had correctly resorted to provisional assessment based on the notification's requirements. It was acknowledged that the provisional assessment status was recognized for August and September, but the nature of assessment from October onwards was in question due to the Self Assessment Scheme transition. The Tribunal emphasized that under Rule 9B, final assessment could only be made by the proper officer who ordered or acknowledged the provisional assessment. Since no final assessment order had been passed, the Tribunal concluded that the absence of a provisional assessment mention in the returns did not automatically finalize the assessment.

Given the transitional phase and procedural complexities during the introduction of the Self Assessment Scheme, the Tribunal decided that a technical view should not override the interest of justice. Therefore, the Order-in-Original was set aside, and the matter was remanded for fresh consideration by the original adjudicating authority after hearing both parties. The Tribunal highlighted that the Self Assessment Scheme did not alter the requirement for the Assistant Commissioner to order the cessation of provisional assessment under Rule 9B, emphasizing the need for a proper assessment order for finalization.

In conclusion, the Tribunal granted the waiver of pre-deposit and proceeded to hear the main appeal, emphasizing the importance of proper procedural adherence and the role of the Assistant Commissioner in finalizing provisional assessments under Rule 9B amidst the transition to the Self Assessment Scheme.