1999 (11) TMI 295 - AT - Central Excise

Summary

Issues:
Classification of products, Provisional assessment, Filing of bond, Limitation on confirming duty, Finalization of assessment, Abatement deduction calculation.

Classification of products:
The case involved a dispute over the classification of egg containers and other containers manufactured by the appellants. The initial classification under sub-heading 4818.90 was challenged by the assessee, leading to subsequent orders by the Collector (Appeals) and the Tribunal. The Supreme Court eventually upheld the classification under Heading 4818.90. However, a later classification list was filed claiming classification under Heading 4819.19, which was provisionally approved by the Assistant Collector. The jurisdictional Superintendent directed the assessee to file bonds under Rule 9B, which the assessee failed to comply with. The subsequent show cause notices and orders by the Assistant Collector resulted in a final classification under Heading 4823.90, leading to the present appeal.

Provisional assessment and Filing of bond:
The issue of provisional assessment arose due to the failure of the assessee to file the required bond despite directions from the department. The Assistant Collector ordered provisional assessment under Rule 173B and Rule 9B, which required the assessee to file a bond. The delay in issuing directions by the department was acknowledged, but the assessee continued to clear goods without fulfilling the bond requirement. Arguments were made regarding the necessity of filing a bond for provisional assessment, citing relevant case laws such as Usha Martin Industries Ltd. and Nipha Machineries v. CCE.

Limitation on confirming duty:
The appellant argued that without a demand notice under Section 11A, the confirmation and recovery of differential duty were improper. The issue of limitation on confirming duty without a proper notice was raised, challenging the validity of upholding the duty confirmed by the Assistant Collector. Case laws and judgments were cited to support the argument that in the absence of a demand notice, the duty confirmation was legally flawed.

Finalization of assessment and Abatement deduction calculation:
The Tribunal analyzed various judgments, including the Supreme Court's decision in Serai Kella Glass Works Pvt. Ltd. v. Collector, to determine the legality of finalizing the assessment and raising demands without a specific show cause notice under Section 11A. The argument regarding the calculation of duty based on allowable deductions under Section 4 of the Central Excise Act, 1944, was raised by the assessee. The Commissioner (Appeals) failed to address this argument, leading to the decision to remand the proceedings for re-quantification of the demand considering the deductions allowed under Section 4.

In conclusion, the Tribunal upheld the impugned order but remanded the proceedings to the Assistant Commissioner for re-quantification of the demand based on allowable deductions under Section 4 of the Act.