9911796707
TMI Blog1999 (8) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... roducts, filed Classification List (C.L.) effective from 1-3-1986 classifying their products viz., (a) Thymol Crystal IP, (b) Terpineol BP and (c) Terpine Hydrate under Chapter Heading 3003.30 (Medicaments) which were exigible to nil rate of duty in the Tariff itself. The Classification List (C.L.) filed by the appellants effective from 1-3-1986 was signed by the Asst. Collector on 10-6-1986 and while doing so, he scored off Paragraphs 1 and 3 in the Memorandum of Approval but did not strike out Paragraph 2, which related to provisional approval. No reasons were, however, given by the Asst. Collector for doing so. Appellants were also not asked to execute any bond or furnish security. On that basis the appellants filed RT 12 returns every ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oval of the said C/List also did not carry any remark to the effect that the assessments were being done provisionally. 3. On 27-4-1991, the Asstt. Collector by Memorandum of that date approved the C.L. effective from 1-3-1986 to 30-4-1991 holding them to be provisional in nature and classifying the goods under Chapter 29. Pursuant to the said Memorandum, the Superintendent issued a demand quantifying the duty. However, the Commissioner of Central Excise (Appeals) set aside the Asst. Collector s Memorandum dated 27-4-1991. Thereafter, the Asst. Commissioner issued a fresh memorandum on 12-1-1996 confirming the classification under Chapter 29 which was confirmed by the Commissioner (Appeals) by Order dated 12-12-1996. Appellants have chall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere has to be an order of the Proper Officer. He further submitted that the said decision of the Tribunal had been confirmed by the Hon ble Supreme Court as per report in 1988 (99) E.L.T. 8. Further, he also drew our attention to certain circulars issued by the Central Board of Excise and Customs dated 24-4-1989 and 25-5-1990, in which the field formations were advised to strictly follow the requirements of Rule 9B, failing which the assessment will not be considered as provisional. Detailed instructions had been given in the circulars as to the steps to be taken by the Assessing Authorities while making provisional assessment. He also submitted that in the absence of any direction to execute a bond for securing the provisionally assessed d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Proper Officer under Rule 9B. 6. We have considered the submissions and have perused the records. Rule 9B(1) lays down three circumstances in which the Proper Officer can make a provisional assessment. The Proper Officer has also been given the power to make a provisional assessment at the rate indicated by him if the assessee executes a bond in the proper form with sufficient security or on the basis of conditions laid down by the Proper Officer. It has been held in Nipha Machinery Manufacturers v. CCE [1990 (48) E.L.T. 549 (Tribunal) = 1990 (31) ECR 292] that in the absence of a bond, there will be no provisional assessment. It has also been held that where the C.L. been once approved unconditionally, it would not be treated as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority before allowing clearance of the goods. The records thus show that clearances have been allowed on the basis of the C.Ls. and RT 12 returns without invoking the provisions of Rule 9B and without directing the assessee to execute any bond for safeguarding revenue interest. Since in the C.Ls and RT 12 returns appellants had claimed Nil rate of duty as per the Tariff itself, if there was intention to assess a provisional rate of duty, execution of a bond to secure the amount assessed would have been clearly insisted upon. Further, it also appears that the assessing authority had failed to take note of the circulars issued by the Board relating to the procedure to be followed by the assessing authorities under Rule 9B. We find from C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht of the above, be sustained. The Appeal is accordingly allowed and the impugned order set aside. 7. We have taken note of the submission made by the ld. SDR as regards the appellants claim for the benefit of Notification No. 31/88 which relates to bulk drugs. For deciding eligibility under this notification, according to the D.R., chemical examination report may have to be called for and therefore on this aspect, the matter has to be remanded to the original adjudicating authority. However, since we have taken the view that the claim of the Department that the items were only provisionally assessed is not legally sustainable, the classification claimed by the appellants in their C.Ls and RT 12 returns hold good. These items being eligi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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