2000 (8) TMI 407 - AT - Central Excise

Summary

Issues:
1. Superintendent demanding duty after Assistant Collector's order was set aside.
2. Authority of Superintendent to recover short payment of duty under Section 11A.
3. Validity of provisional assessment and duty liability.
4. Appeal against the Order-in-Appeal No. 360/88(B) dated 14-12-1988.
5. Claim that clearances up to approval of classification list are deemed provisional.
6. Superintendent's authority to demand duty when the matter is in favor of the assessee and under appeal.

Analysis:

1. The Superintendent of Central Excise issued a letter directing the assessee to pay duty, which was appealed against. The Collector (Appeals) found the Superintendent's action not maintainable as the Assistant Collector's order had been modified for the same period, approving the classification and setting aside unquantified demands of duty. The Superintendent was not authorized to demand duty when the Assistant Collector's order was set aside.

2. The Collector (Appeals) held that the Superintendent lacked authority to recover short payment of duty under Section 11A of the Central Excise Act, 1944. The contention that the classification list was not approved and there was provisional assessment was dismissed, emphasizing that provisional assessment must be as per the proper officer's order with a necessary bond.

3. The department appealed against the Order-in-Appeal No. 360/88(B) dated 14-12-1988, arguing that duty payment becomes mandatory only upon final approval of the classification list by the Assistant Collector. They claimed that the respondents were obligated to pay differential duty voluntarily upon final approval of the classification list.

4. The department further contended that the approval of the classification list on 6-5-1987 made clearances up to that date deemed provisional under Rule 173B of Central Excise Rules. They argued that the Superintendent's demand for differential duty was correct following the approval of the classification list.

5. The Appellate Tribunal rejected the appeal, upholding the Collector (Appeals) order. They cited a Supreme Court decision stating that duty paid between filing the classification list and its approval is provisional. The Tribunal disagreed with the grounds of appeal, affirming that the Superintendent should not have demanded duty when the matter was in favor of the assessee and under appeal by the Revenue.

6. Ultimately, the Tribunal concluded that there was no justification for the Superintendent to issue a demand for duty when the Revenue had appealed against the Collector (Appeals) order. Consequently, the appeal was rejected based on these findings.