9911796707
TMI Blog1998 (11) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... were provisional and were finalised only on 6-12-1995. The demand of central excise duty had arisen out of the classification of the unmachined continuous cast iron bars (hereinafter referred to as the `bars ). The assessee had sought classification of the bars under sub-heading No. 7201.00 of the Central Excise Tariff. Under Order-in-Original dated 6-12-1995, the Asstt. Commissioner of Central Excise, Ghaziabad had finalised the classification under sub-heading No. 7207.10 of the said Tariff. The goods classifiable under sub-heading No. 7207.10 were not eligible for the small scale exemption under Notification No. 1/93-C.E., dated 28-2-1993. The assessee had claimed benefit of that Notification No. 1/93-C.E. The Asstt. Commissioner of Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment of excise duty was not provisional, the assessments could not be held to be provisional. He also referred to the Tribunal s decision in the case of Collector of Central Excise v. Pharmasia Pvt.Ltd. - 1989 (41) E.L.T. 77 (Tribunal). The Tribunal had observed that the provisional assessments could only be in respect of the goods under clearance. The past clearances could not be made provisional by a letter written subsequently. 3. Shri Sanjeev Srivastava, SDR replied that the appellants had not challenged the classification and that the bars so classified under sub-heading No. 7207.10 were not eligible to the benefit of small scale exemption under Notification No. 1/93-C.E., dated 28-2-1993 from the very beginning. The assessments we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants filed a revised classification list effective from 1-4-1995 classifying their product - bars under sub-heading No. 7201.00 of the Tariff. The classification list was not approved. In the meanwhile the assessee continued to make clearances without any approval of the classification list. The assessee continued to make assessments under sub-heading No. 7201.00 with benefit of the small scale exemption under Notification No. 1/93-C.E. The classification under sub-heading No. 7201.00 was not agreed to by the Department and a show cause notice was issued on 14-9-1995 proposing classification under sub-heading No. 7207.10 of the Tariff. In the show cause notice itself, it was ordered that the assessments were provisional. The Asstt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 7207.10 of the Tariff. After the classification was so settled under Order dated 6-12-1995, a show cause notice was issued on 19-1-1996 by the Asstt. Commissioner of Central Excise, Ghaziabad proposing for the demand of Central Excise duty. It was alleged in the said show cause notice dated 19-1-1996 that from 1-4-1995 to 17-8-1995, the assessee had availed of the benefit of Notification No. 1/93-C.E. while no such exemption was available to the products classificable under sub-heading No. 7207.10. As I have noted above, the classification of the bars had already been settled by the Asstt. Commissioner of Central Excise, Ghaziabad under his Order-in-Original dated 6-12-1995. 5. The classification list filed on 31-3-1995 (effective fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is provisionally assessed under the Act or the rules, the date of adjustment of duty after final assessment was to be the relevant date . Under Section 11A of the Act, show cause notice for recovery of duties short levied could be issued within six months from the relevant date. In the present case the final assessment was made on 6-12-1995 and the show cause notice had been issued within time on 19-1-1996. In the case of U.O.I. v. Godrej Boyce Mfg. Co. - 1989 (43) E.L.T. 225 (Bombay), the Bombay High Court had held that where the excise duty has been provisionally assessed, it is the date of adjustment of duty after final assessment that is the relevant date for the purposes of Section 11A of the Act. 8. The eligibility or non-elig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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