9911796707
TMI Blog2009 (12) TMI 794X X X X Extracts X X X X X X X X Extracts X X X X ..... he year 1986, classifying the impugned goods under sub-heading 5905.20, which was approved provisionally as there was dispute regarding classification of the product. Accordingly, the relevant RT-12 returns were also assessed provisionally. The appellants letter dated 26-9-86 also clearly indicated that the assessment was provisional. The case of the appellants, on the other hand, is that the proper officer never issued an order under Rule 9B of the Central Excise Rules, 1944, directing provisional assessment and executing the necessary B-13 bond. The lower appellate authority has held that the assessment for the impugned period 1-3-1986 to 28-2-87 was provisional leading to this appeal. 3. While arguing the case before us, both sides hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount of duty in his personal ledger account. The amount of duty paid by him was obviously provisional and subject to the result of the final approval by the officer concerned. This is the procedure prescribed under Rule 9B except for the circumstance that no bond as provided in Rule 9B is required in a case where the personal ledger account is maintained for the clearance of the goods, since there is always a balance in the account current sufficient to cover the duty that may be demanded on the goods intended to be removed at any time. In these circumstances, the clearance of goods made by the appellant between 1st April and 3rd of June, 1985 were in accordance with the procedure for provisional assessment. In such a situation clause ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... back to the departmental authorities for considering the claim of the appellants for refund under the ratio of Mafatlal Industries case (supra). If the appellants succeed in establishing that the payment of duty which was made by them for the period in question was a provisional payment, they shall be entitled to the benefit of the ratio of the judgment of this Court in Samrat International s case (supra). 3. Rajiv Mardia v. CCE, Indore, 2000 (118) E.L.T. 627 (Tri.-LB) In this case, the five member Bench of the Tribunal held that the decision of the Supreme Court in the case of Samrat (supra) applies even to cases of demand. It was further held that there should be material on record to show that procedure laid down in Rule 9B was fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visional classification or there was an order made under Rule 9B empowering the clearance on the basis of such provisional classification. In the absence of the same, we cannot accept the argument of the Revenue that in fact the order of the Assistant Collector dated 21-1-1976 is a provisional order based on which clearance was made by the appellants or that they paid duty on that basis. On the contrary, as held by the Judicial Member the said order of classification was a final order, therefore, the Revenue cannot contend the limitation prescribed under Section 11A does not apply. 4. We find that in the case of Metal Forgings (supra), the Hon ble Supreme Court has taken note of its earliar decisions in the case of Samrat (supra) as well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the basis of revised classification list till the approval of the same and that as instructed they have been continuing to clear the impugned goods under the provisionally approved classification list. They have also requested the department to kindly note that they are paying duty as directed under protest. 7. The factual details as enumerated above, leaves us in no doubt that there was a provisional classification and that the clearances and duty payment were done provisionally. Hence, this case, meets the test laid down under the Hon ble Supreme Court decision in the case of Metal Forgings (supra) which clearly held that either there should be a provisional classification or there should be an order under Rule 9B empowering the clear ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
