9911796707
TMI Blog1986 (1) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 1944 envisage provisional assessment or not; and (2) Whether limitation period is to be counted from the date of payment of duty as envisaged under Rule 11 or Section 11B or from the date of assessment. 2. The present application arises out of the appeal of M/s. Digvijay Cement Co. Ltd. registered under ED(BOM)A.No.106/83 and disposed of under Tribunal s order No. 228/86-WRB, dated 7-2-1986. Under the aforesaid order the Tribunal held that the assessments under Chapter VII-A were in the nature of provisional assessment till they were finalised by an assessment of the RT-12 return in terms of Rule 173-I. Therefore, for the purposes of claiming refund of duty paid under the self-removal procedure, the Tribunal held that the releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee is required to determine the duty due on the goods before their clearance and this duty is assessed after the classification list and the price list have been approved. The removal under Rule 173F has to be read with the removal of the goods under Rule 9. Similarly, the debiting of duty to the PLA under Rule 173G is not possible if the duty is not determined after assessment. In case of classification list under Rule 173B, Sub-rule (3) envisages payment of duty under protest where an assessee disputes the rate of duty. This would not be so if the assessment is treated as provisional. The same position obtains in respect of the price list under Rule 173C. Therefore, it cannot be stated as held by the Tribunal that the assessments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was no dispute in classification of the product as envisaged by Rule 173B of the Central Excise Rules. On the question of fact, Shri Patel submitted that the Asstt. Collector did not grant refund of duty paid on 2 gate passes while assessing the RT-12 return, requiring the manufacturer to file a specific application in terms of Rule-11. The Tribunal s order did not set out any questions of law which required reference to the High Court. He, therefore, prayed that the application should be dismissed. 5. In reply Shri Senthivel argued that Rule 173-I did envisage suo motu adjustments of duty. He further drew the Tribunal s attention to Sub-rule (11) of Rule 173C to show that the assessments under Chapter VII-A were final and not provisional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned in the order. The learned SDR has argued that the Supreme Court s decision in the case of National Tobacco Co. related to an incomplete assessment and this will not apply. This is not a correct reading of the Supreme Court s decision. Besides for an assessment to be valid, it would involve the levy and collection of duty by a proper officer of Central Excise. This is not done under Chapter VII-A till the proper officer assesses the RT-12 return in terms of Rule 173-I. In other words, if the contention of the learned SDR is to be accepted, assessment can be made by an assessee himself without the proper officer playing any part in the assessment. This would not be in accordance with the requirements of Section 3 or in accordance with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not hold water. In practice, there are provisional assessments in terms of Rule 9B read with Chapter VII-A in many cases where final assessments in case of commodities falling under Rule 173A, cannot be done. The provision of Rule 9B requires execution of a bond by the assessee with sufficient security also if considered necessary. On the other hand, the provisions of assessments under Chapter VII-A do not require any such bond or security. The reasons are quite obvious. In the case of provisional assessments under Rule 9B, assessable value for charging duty is yet to be approved or the rate leviable on the excisable goods is yet to be finalised. In absence of any determination the requirements or a bond with cash security are essential fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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