2010 (3) TMI 593

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..... aged in manufacture of M. S. Tubes/Pipes, clearing its final products at factory gate and also through consignment on provisional basis, for which, the differential duty was discharged at a later stage. The clearance was finalized under Rule 9(b) of the Central Excise Rules, 1944 (for short "the Rules"). 2. The assessee filed the refund claim for the period with effect from 1-4-1996 to 27-9-1996 on the ground that they paid the excess duty on the price of consignment sales, which was not payable under Section 4(1)(a) of the Central Excise Act, 1944 (hereinafter to be referred as "the Act"). The duty was payable on the normal value ascertainable at factory gate and not on the sale price of consignment agent. Thus, the assessee claimed the r .....

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..... l assessments, therefore, the appeal was not maintainable. The argument is that since the inter-departmental letters dated 5-3-1997 and 5-5-1997 cannot legally be termed as assessment orders, so, the assessee was not required to file the appeal against these communications. Raising a variety of arguments, in all, according to the learned counsel for the assessee that the Tribunal ought to have decided the matter for refund of the amount of excess duty on merits. Hence, he prayed for acceptance of this appeal. 8. Hailing the impugned order, on the other hand, learned counsel for the Revenue has urged that in the absence of filing the appeal against the indicated orders by the assessee, the appeal filed by it was not maintainable, which was .....

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..... any, involved on the goods lying unsold at Depots." 11. Sequelly, second letter dated 5-5-1997 written to the assessee is as under :- "In compliance of letter of C. No. V (85) 3/JST/47/93/1962 dated 5-3-1997 issued by the Rohtak, Provisional assessment of your firm for the period April 96 to Sept.96 is hereby finalized subject to production of sale details of depots in respect of balance stock lying unsold at Depots and deposit of differential duty as may be quantified on the basis of such sales details." 12. Meaning thereby, there is no formal expression of an adjudication of the real controversy between the parties in the aforesaid letters. The interdepartmental letters dated 5-3-1997 and 5-5-1997 written in the absence of the parties .....

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