9911796707
TMI Blog2000 (10) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... to this appeal may briefly be stated as under : 3. The respondents filed classification lists Nos. 2/92-93, dated 1-3-1993, 1/93-94, dated 1-4-1994, 4/93-94, dated 1-3-1994 and 1/94-95 dated 1-4-1994, wherein they classified their product viz. Connecting cable, battery pack and battery charger cum power pack under sub-heading 9031.00 of the CETA but these were all approved provisionally and show cause notice was issued to them by the Assistant Collector on 27-6-1994 as to why the product, battery pack and battery charger cum power pack be not classified under sub-heading 8507 of CETA and he changed the classification of the product battery pack from sub-heading 9031.00, as claimed by the respondents to sub-heading 8507 of the CETA, throu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , namely (1) no order regarding the provisional approval of the classification lists was conveyed to the respondents, (2) Even no order regarding provisional assessment under Rule 9-B of the Central Excise Rules was passed by any competent authority and as such the removal of the goods during the disputed period by the respondents must be taken to be under the approved classification lists, (3) Even if there was provisional approval of the classification lists, the provisional assessment order could only operate in respect of the goods which were cleared by the respondents subsequent to passing of that order and not earlier to that, (4) No show cause notice for recovery of the differential duty demand under Section 11A of the Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion from sub-heading 9031 to sub-heading 8507 of the CETA. Therefore, removal of the goods by them cannot be said to be under an approved classification list, rather it can be safely concluded that the same was under the provisional approval. This conclusion also finds corroboration from the provisions of Rule 173-CC of the Central Excise Rules which empowers the assessee to remove the goods in certain cases pending approval by the proper officer of the classification or price lists. This rule clearly enacts that where an assessee pending approval of the classification or price list removed such goods on payment of duty on the basis declared in the list and thereupon the duty paid on such goods shall be deemed to be the duty assessed provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee, it was ruled that such clearances shall be deemed to be provisional even if B-13 Bond was not executed by the assessee. Therefore, the view taken by the Collector (Appeals) that the clearances made by the respondents during the period in question were under the approved classification lists, must be held to be erroneous and unsustainable in law. 11. The contention of the learned Counsel that the provisional assessment order dated 27-4-1994 can be made applicable only in respect of the goods cleared after that date and not earlier to that, cannot be accepted being wholly misconceived. As observed above, the classification or price lists, as submitted by the respondents, were never approved by the Assistant Collector, rather ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... They were rather served with a show cause notice for the change of the classification of the product in question and before the adjudication of that notice and the final approval of their classification lists, they managed to clear the goods paying duty only on the price, as declared by them in the lists. The duty so paid on such goods, has to be deemed to be assessed provisionally under Rule 9-B, as is clear from the bare reading of Rule 173-CC of the Rules. Therefore, the respondents cannot escape from the payment of the differential duty on the goods cleared by them before the final approval of their classification lists. The demand of differential duty raised from them after the approval of the classification lists for the period in qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntified and demand was issued. But soon thereafter another demand in terms of the same adjudication order was issued and on that account it was ruled by the Apex Court that the show cause notice and personal hearing before saddling with additional demand was essential . But such is not the situation in the case in hand. The demand for payment of differential duty had been raised in consequence of the finalisation of the provisional assessment after adjudication and after giving hearing to the respondents. No additional demand had been raised from them in consequence of the final assessment order. 12. The view taken by the Collector (Appeals) in the impugned order that the demand for payment of differential duty for the period 1-3-1993 to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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