2017 (2) TMI 882 - AT - Central Excise

Valuation - finalization of price / value at the end of the year - Extended period of limitation - Held that - The observation of the Commissioner (Appeals) is on assumption and presumption that costing of the goods is done on yearly basis. He felt that the assessment is deemed to be provisional, which is basically incorrect on the fact that neither any provisional assessment order was passed by the Department, nor the appellant has sought for the provisional assessment. We are of the considered view that the adjudicating authority should examine the issue of time bar afresh and pass a reasoned order including the issue of quantum of value which was remanded by the Commissioner (Appeals) - Appeal allowed by way of remand.

Summary

Issues:
1. Assessment deemed provisional due to timing of costing.
2. Applicability of time bar on the demand.

Analysis:
1. The appeal challenged an Order-in-Appeal remanding the matter to the adjudicating authority to determine the correct assessable value. The appellant contended that the demand was time-barred as the assessment was not provisional. The Commissioner (Appeals) found that the costing of the product was generally available only at the end of the year, deeming the assessment provisional. However, it was also noted that formalities regarding provisional assessment were not clear from the records. The appellant disputed this observation, arguing that the assessment was final as no provisional assessment order was passed, and reliance was placed on relevant case law.

2. The appellant argued that the demand for the period 1995-96, issued in 1997, was not time-barred as the assessment was not provisional. The Revenue reiterated the findings of the impugned order. The Tribunal observed that the issue of valuation had been remanded to the adjudicating authority, making it not the subject matter of the appeal. The Tribunal disagreed with the Commissioner (Appeals) on the assumption that the assessment was provisional due to yearly costing, emphasizing that no provisional assessment order was passed. The Tribunal held that the assessment was final, but the issue of time bar required further examination by the adjudicating authority along with the valuation issue. Consequently, the impugned order was modified, remanding the matter for a fresh adjudication order considering the Tribunal's observations, thereby allowing the appeal by remand to the original adjudicating authority.