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TMI Blog1999 (4) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... se both appeals are whether the assessee can plead limitation in terms of provisions of Rule 57-I (as it then stood) knowingly the time to reckon from the date of such credit and not the time which has been calculated by the lower authorities. 3. The assessee appellants are engaged in the manufacture of excisable goods falling under Chapters 84, 85 90 of the Schedule to the Central Excise Tariff Act, 1985. They were availing Modvat credit facility the appellants it would appear, filed declaration from time to time under Rule 57G to enable the appellants to avail credit of duty paid on the inputs used in the manufacture of the final products. In 1988 Rule 57-I of the Central Excise Rules, there was amended to enable them assessing office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notices were time barred because they were not issued within six months for availing of the credit : It was argued alternatively by Shri Prakash Shah : That if the department s case is that it is provisional assessment the department s case has to fail because a show cause notice did not proceed on that basis and without finalising of the provisional assessment in any event demand could not have been made. As against this Ld. DR vehemently supports the impugned order. 5. I have considered the interesting rival submissions made by both parties. After considering the rival submissions I am of the view that I have to agree with Shri Prakash Shah in one case namely they take Appeal No. E/207/95 credit was availed of in July 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st sight of. 7. One more point needs mentioned here. Shri Prakash Shah argued before me, in both the cases where provisional assessment have only been made. Therefore the department had power to recover wrong availment of credit only when the final assessments are made. It is a correct argument I afraid the assessing authority lost sight of the fact that the demand cannot be made unless the liability has been crystallised. A demand is only a preliminary step before assessment. After assessment becomes the final stage the liability of the assessee is crystallised or formalised after observing the rules of natural justice. The department has issued a notice in these cases knowingly the basis of provisional assessment. It does not speak any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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