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TMI Blog2003 (3) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Commissioner (Appeals) that printing of plain film did not amount to manufacture, the appellant filed price list in which it claimed valuation of the plain film in terms of Rule 6(b)(ii) of the Valuation Rules, i.e. based upon the cost of manufacture. The department has not so far objected to this mode of valuation. We are concerned in the appeal with the price list filed by the assessee on 25th March, 1992, 30th August, 1993, 26th June, 1995 and 26th October, 1995. All the price lists were provisionally assessed in terms of Rule 9B pending determination as to whether comparable prices for the same goods manufactured by other assessee were available or not. A notice was issued to the appellant on 4-2-1999 seeking to finalise provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore will have to go back to the Commissioner for passing speaking orders on the contention that was raised before him and in the reply. While doing so, he will also have to pay heed to the following matter. It is contended by the assessee that the price list filed by it effective from 25-3-1992 has been finalised by order of the Assistant Commissioner dated 28-12-1992 and therefore the assessment with regard to the price has become final. There cannot be any suppression of facts and therefore the notice, so far as this period is concerned, is barred by limitation. It is further contended that since the show cause notice has finalised provisional assessment, the question of imposition of any penalty on the assessee or its employees would n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 11A. The Commissioner confirms duty under Section 11A read with Rule 9B. We do not see how these two can coexist with regard to same clearance in the notice, that is to say in other words, the department by a notice may seek to finalise provisional assessment; such a notice under Section 11A can also recover duty short levied. However the goods have been provisionally assessed. Such provisional assessment by itself is not a cause for short levy and proceedings for finalisation of that assessment cannot invoke Section 11A. Short levy presupposes the duty which ought to have been paid has not been paid. That cannot be the situation where the goods are provisionally assessed because the duty that is to be paid is yet to be determined. It ..... X X X X Extracts X X X X X X X X Extracts X X X X
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