9911796707
TMI Blog1991 (12) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... re Pole, Pole piece were classified under sub-heading No. 7208.00 attracting duty at Rs. 365/- per MT but subsequently they filed Revised/Supplementary Classification Lists effective from 1-3-1986 (on 8-7-1986), 20-10-1986, 24-11-1986, 27-11-1986, 22-12-1986, 9-3-1987, 23-3-1987 and 1-3-1987 classifying the impugned items under sub-heading No. 7308.90 attracting duty at 15% adv. except in respect of Bearing Cup Forgings" for which the classification done earlier under sub-heading No. 7208.00 with duty at Rs. 365/- per MT has been sought for approval. The Assistant Collector of Central Excise, Lalbagh Division, Bangalore after re-examination of the products in question has issued a show cause notice No. C. No. V/83/3/57/86.B.5 dated 6-1-1988 to the respondents asking them to show cause as to why the goods described under the afore mentioned classification lists should not be classified under sub-heading No. 8708.00 and chargeable to duty at 20% adv. in view of the fact that the said goods are ultimately used as PARTS OF MOTOR VEHICLES and merits classification under sub-heading 8708.00 only as per the provisions of Rule 2 (a) of the Rules of Interpretations of Central Excise Tariff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of classification of the goods was pending finalisation after 1-3-1986 starting with. classification list 91/86 filed by the Respondents. He has pleaded that the Respondent were allowed to make their clearances in terms of the provisions of Rule 173CC treating the clearances as provisional and the question of classification was finalised by issue of the order of the Assistant Collector bearing C. No. V/83/3/86, dated 2/6-5-1988. He has pleaded that the relevant date therefore for the issue of demand would be the date of this letter and the question of demand being not maintainable for want of issue of show cause notice under Section 11A of the Central Excises Salt Act, 1944, by the Asst. Collector would not arise as the Assistant Collector had given direction to the Superintendent to raise the demand in view of the finalisaion of the classification dispute. He has pleaded that the learned Collector (Appeals) was in error in holding that the demand made in terms of the order of the original authority was not maintainable in law. He has poionted out that the learned Collector (Appeals) had held in favour of the Revenue in regard to classification matter and had upheld the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts clearances were on provisional basis pending finalisation of the classification list. It is not disputed that the Respondents were aware that classification list had not been finalised and they were paying duty based on the declaration in the classification list. The Respondents were aware that their classification list had not been approved and they were issued show cause notice by the authorities on 6-1-1988 and the classification dispute was settled by issue of the order of the Assistant Collector dated 2/6-5-1988 referred to supra and thereafter proceedings for differential duty were drawn. The Respondents have not disputed the classification as held by the lower authority. In such a situation, therefore, can it be said that the position regarding assessment was final? In our view, the answer is no. It goes without saying that the classification and price list are determining factors for assessment of goods. In the normal course the assessees are expected to determine the duty liability based on the classification list approved by the proper officer in respect of the goods intended to be removed from the factory. But pending finalisation of the classification list of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove the goods without final approval of the classification list without a bond for 14 days and thereafter on execution of a bond. In the present case, however, the Revenue authorities have not taken a bond from the assessees as set out under Rule 9B and have continued to allow the assessees to make clearances from the factory. The clearances without approval of the classification list should have been ceased to be allowed, if the assessee did not execute a bond in case he had been called upon to do so. The Revenue, however, continued to allow clearances even when the classification list had not been approved finally beyond the 14 days period of the filing of the classification list without calling upon them to execute the said bond. In such circumstances, the plea of the Respondents is that the clearances should be taken to have been made on the final basis and not on provisional basis and the payment of duty could not be taken as on provisional assessment basis and in that view of the matter, the demand not being within six months from the date of payment of duty should be held to be beyond limitation. 8. We observe that there is nothing in law nor anything on record from which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taking into consideration any price in excess of the price fixed under the Price Control Order, and therefore, the mere fact that the assessment orders were final would not shut out the Department from claiming the additional duty." In the present case also we find, as was the case above, that both the appellants and the Departmental authorities knew that the classification list had not been approved and the Departmental authorities could not have finalised the assessments. The appellants have also not cited any specific provision of the law under which the assessment made and the clearances made could be taken to be on final assessment basis. We, therefore, hold that the learned Collector (Appeals) was in error in holding that the Assistant Collector s order regarding the demand of duty was not maintainable as no show cause notice had been issued under Section 11A and the consequent demand raised by the Superintendent also for that reason not maintainable. We hold that the appellants had been put on notice regarding the classification of the goods and they participated in the proceedings before the original authority who classified the goods under the heading under which the de ..... 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