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TMI Blog1986 (4) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... ipt of the reply the Collector by order dated 6-12-1980 set aside the order of the Assistant Collector and vacated the same and confirmed the demand raised earlier. It is against the said order that the appellants preferred a revision petition to the Government which, on transfer, is now before us as an appeal. 2. We have heard Shri V.K. Agarwal, Advocate, for the appellants and Shri V. Ohri, SDR, for the department. 3. On the question of classification, Shri Agarwal stated that the contention for the appellants is that the subject goods were classifiable under T.I. 68 CET only and not T.I. 61 CET, but that in view of other decisions of this Tribunal on the said question he would not make further submissions except to reiterate that classification should be under T.I. 68 only (that is to say) that he pressed for classification under T.I. 68 but that he would not like to take further time over such an argument as this Bench is bound to follow the earlier decisions for classification under T.I. 61. 4. At an earlier hearing Shri Agarwal had filed two applications dated 4-1-1986, one seeking leave to raise additional grounds, and the other seeking leave to introduce additional ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lector was right. The basis for this argument was that there was no order for provisional assessment. It is to support this contention that the two documents referred to earlier (as additional evidence) were filed. Shri Agarwal points out that under their letter dated 31-12-1985, the appellants had asked the Superintendent to issue a certified copy of the provisional assessment order, and that by reply dated 1-1-1986 the Superintendent had mentioned in this connection you are informed that you yourselves have opted for provisional assessment under Rule 9B of the Central Excise Rules 1944 and have also executed B 13 bond for following the procedure under Rule 9B for provisional assessment in respect of the commodity referred to in your letter . Shri Agarwal points out that it is, therefore, clear that there was no written order for provisional assessment during the relevant period. He, therefore, contends that in the absence of any such written order there could have been no provisional assessment under Rule 9B and hence the entire basis for the order in review by the Collector was incorrect. 7. As earlier mentioned, the Collector had observed in his order that it is not denied b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. In the present case, it is, therefore, to be seen whether there was, in fact, a provisional assessment only, in respect of the clearances during the relevant period as claimed by the department. We may note that no written order of such a provisional assessment has been produced by the department. From the letter of the Superintendent dated 1-1-1986 it appears that there was no such written order, the appellants themselves opting for provisional assessment. The case for the department is that there was a request by the appellants for provisional assessment and that, following the said request, the goods were allowed to be cleared under such provisional assessment. It is submitted that the order for such provisional assessment would be fully established by the conduct of the appellants themselves since they had executed a bond with a surety also agreeing to such provisional assessment and undertaking to pay differential duty also later in case further duty is held payable on finalisation of the assessment. 10. In this connection we may note that the appellants had executed a bond on 25-6-1977. It reads inter alia - Whereas final assessment of excise duty of electric lighting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will be applicable only if the value of plant and machinery in the factory does not exceed Rs. 10 lakhs". It is clear from this letter that consequent upon the changes in the budget of 1977-78 the department had sought clarification from the Board, and it was evidently pending receipt of this clarification that the department had permitted clearance under provisional assessment during the relevant period in respect of the lamp holders manufactured by the appellants. When all these circumstances are taken together into consideration there is no reason to reject the case of the department that on a request of the appellants for provisional assessment an order or direction (may be order) had been passed, permitting such provisional assessment and it was in pursuance thereof that a bond had also been executed by the Managing Director of the appellants and that during the relevant period the clearances on payment of duty at 2% instead of 10% under T.I. 61 was in pursuance of such provisional assessment only. The mere absence of a written order permitting such provisional assessment would not make the assessments final and not provisional. 12. Shri Agarwal referred us to the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... staken notion that a provisional assessment could be made, it cannot be said that a provisional assessment has, in fact, been made under Rule 9B so that a notice can be given under sub-rule (5) thereof. Let us see what has happened in this case. Goods were allowed to be cleared. There is no doubt that the procedure adopted was one for facilitating the turnover of goods, that is to say, to prevent the accumulation of a large amount of stocks in the factory premises. But what really happened was that Government was accepting the value put forward on behalf of the petitioner company, taking from it an undertaking to pay the deficiency. But this does not make the assessment a provisional assessment under Rule 9B . He stated that the said observations would apply to our case also. 15. But we may note that in several places the High Court had made it clear in the said judgment that they were ruling against the theory of provisional assessment on the peculiar facts of the said case. For instance, in page 143 they had said In our opinion on the materials before us, it would be extremely risky to come to any decision on the question of the bonds . Earlier at page 141 they had observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eful consideration of all the facts and circumstances that the clearances during the relevant period were in terms of provisional assessment under Rule 9B as claimed by the department. 19. Shri Agarwal then contends that, in that event, the provisional assessment must be held to have been finalised on 4-10-1977 itself and therefore, the demand for the differential duty should have been raised within the period of limitation calculated from that date. According to him the department had come to realise on 4-10-1977 that there could be no further doubt as to the proper item under which lamp holders should be classified and, therefore, the provisionality of the assessment had come to an end by that date. In connection with this submission also he relied upon the decision in 1986 (7) ETR 161 cited supra. But it should be noted that while the letter dated 4-10-1977 indicated that duty at 10% should be paid with effect from 18-6-77, it did not deal with the clearances earlier or the differential duty payable on such earlier clearances. This would not, in our opinion, amount to finalisation of the assessment on 4-10-1977 with reference to the earlier clearances. Then Shri Agarwal cont ..... X X X X Extracts X X X X X X X X Extracts X X X X
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