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TMI Blog2011 (2) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... en held in the judgements cited - Appeal is allowed - E/4020/2005-Mum - A/123/2011-WZB/C-II(EB) - Dated:- 3-2-2011 - S/Shri Ashok Jindal, P.R. Chandrasekharan, JJ. REPRESENTED BY : Shri Bharat Raichandani, Advocate, for the Appellant. Shri V.K. Singh, SDR, for the Respondent. [Order per : P.R. Chandrasekharan, Member (T)]. The appellant M/s. Caprihans (India) Ltd. is the manufacturer of decorative laminates. They claimed exemption under Notification No. 20/94-C.E., dated 1-3-94 in respect of product manufactured by them during the period 2-2-94 to 31-7-94. A show-cause notice dated 7-9-94 was issued by the Jurisdictional Asst. Collector proposing denial of benefit of exemption claimed by the appellant against which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by the petitioner and provisionally assess the same by allowing the petitioner to clear decorative laminates under Chapter sub-heading 4823.90 of the Central Excise Tariff with the benefit of Notification No. 135/89-C.E. dt. 1-3-89. The Hon ble H.C. further modified the order of 19-9-95 by its order dated 17-10-95 wherein they allowed the appellant to execute a bank guarantee for a sum of Rs. 9,49,490/- for the period 2-6-94 to 31-7-95 inasmuch as the appellant had already secured by way of bank guarantee, the amount of differential duty of Rs. 24,95,887/- covering the period 20-9-94 to 21-12-94. The appellant subsequently withdrew the petition and the Hon ble High Court vide order dated 15-10-2004 allowed the appellant to withdraw t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest. 4. The issue in the case is, whether during the material period the assessment was provisional or not. The appellant has submitted that in the affidavit filed before the Hon ble High Court of Bombay, the department wherein the High Court had clearly stated that the assessments are provisional. In the affidavit filed by the department on 2-12-1998 in Writ Petition No. 3725 of 1995, the Assistant Commissioner of Central Excise, Thane III had stated in the prayer as follows :- The Hon ble High Court may dismiss the subject petition so that the provisional assessment may be finalized and the applicant herein may be allowed to recover the amount payable by the respondent herein forthwith. Further in the affidavit dated 30-8-95 fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand for duty was under Section 11A. However, as per the submissions made to the Hon ble Bombay High Court in the affidavit filed by the department, the assessment was declared to be provisional and the party had cleared the goods provisionally on execution of B-13 Bonds and Bank Guarantee. Therefore, the provisional assessments have to be finalized and the final duty amount has to be determined under the provisions of Rule 9-B of Central Excise Rules, 1944 and duty cannot be demanded under Section 11A, as has been held in the judgements cited (supra). When duty cannot be demanded under Section 11A, the question of demanding interest under Section 11AA also does not arise. In view of this legal position, we allow the appeal. (Pronounced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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