9911796707
TMI Blog2013 (10) TMI 1146X X X X Extracts X X X X X X X X Extracts X X X X ..... peals) has accepted the appeal filed by the Revenue and reversed the orders passed by the original adjudicating authorities. 2. We have heard both sides duly represented by Shri B.L. Narasimhan and Shri Mayank Garg, learned advocates appearing for the appellants and Shri V.P. Batra, learned DR appearing for the respondent for considerable period of time. The dispute in the present appeal relates to classification of HDPE tapes manufactured by the appellants and the dispute relates to the period August, 1989 to 14.10.92. Prior to the relevant period the appellants were clearing their final product under Chapter heading 54.06. For the financial year 1989, they initially filed the classification list claiming the classification list under Cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he adjudication by the original adjudicating authorities, in terms of directions of the Hon'ble Rajasthan High Court, the Asstt Commissioner took note of the Hon'ble Supreme Court decision in the case of HM Bags Manufactures vs. CCE [1997 (94) ELT 3 (SC)] and held that the Boards circular is applicable only prospectively and as is clear from the use of expression 'henceforth'. Inasmuch as the said circular No. 54/12/91 was issued on 24.9.92 followed by Trade notice dated 5.11.92, the Asstt. Commissioner by following the Supreme Court decision in the case of H M Bags Manufacturer, approved the classification under Rule 173B as under heading 3926.90. The said order of the Asstt. Commissioner was put to challenge by the Revenue before the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment during the relevant period were provisional and while finalizing the same, the declaration of law by the Higher courts as also by the Board vide its circular issued under 37B has to be complied. Without going into the legal question as to whether on finalizing the provisional assessment, the law as available on the date has to be complied or not, we find that the assessments were actually not provisional. 7. Though the Asstt. Commissioner in the impugned order has repeatedly used the expression 'provisional' for the assessment but we find that the said use of the expression is in a wide manner, inasmuch as the dispute was pending before the Hon'ble High Court of Rajasthan. It was in this sense, that Assistant Commissioner has termed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y refer to Hon'ble Supreme Court decision in the case of Metal Forgings [2002 (146) ELT 241 (SC)] laying down that order classifying the goods not to be treated provisionally merely because the appeal or other proceedings questioning the correctness of the such order are pending before the higher authorities and for establishing the clearances to be on the provisional basis, an order under Rule 9B of the erstwhile Central Excise Rules, 1944 and clearances / payment of duty on provisional basis is essential. As such, we hold that the assessment were not provisional as held by Commissioner (Appeals). 9. If the assessments were not provisional, the question whether the classification has to be done under 3920.32 in terms of Board's circular N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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