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TMI Blog2014 (12) TMI 620X X X X Extracts X X X X X X X X Extracts X X X X ..... ant is before us. 2. Brief facts relating to the case are as follows:- The appellant has been manufacturing, inter alia , MVAC, since 1990. The appellant sought to classify the said product under CETH 8418 as heat pump other than air-conditioning machines and claimed the benefit under notification 155/86-CE dated 1-3-1986 and duty liability was discharged accordingly during 1991-92 and 92-93. The assessments were kept provisional. A show cause notice was issued on 10-3-98 seeking to classify the product as part of air-conditioning and refrigeration machine and proposing to deny the benefit of concessional rate of 15% adv. Claimed by the appellant and demanding duty @40% adv. Vide order dated 21-8-98, the jurisdictional Asst. Commissioner classified the product under CETH 8418.90 as parts of air-conditioning and refrigeration machine and sought to finalize the assessment by excluding the cost of lithium bromide and other accessories supplied along with MVAC. The said order was challenged by the appellant before the lower appellate authority. The Commissioner on review of the order of the adjudicating authority also filed an appeal before the lower appellate authority. The lower ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the ld. Counsel for the appellant can be summarized as follows:- (1) The case of the department in the show cause notices issued earlier and the order-in-original passed was the product in question was part of air-conditioning and refrigeration machine and the differential demand was confirmed on this ground. Since the Tribunal has held that the product in question is not part but a complete machine in itself, the confirmation of duty demand now as per the directions of the Tribunal is not sustainable as it is at variance with the proposal in the show cause notice. (2) Reliance is placed on the decision of the apex court in the case of Hindustan Polymers [1999 (106) ELT 12 (SC)] wherein it was held that the Tribunal's order proceeding on a basis altogether different from the show cause notice is not "moulding" relief but making a new case which is not permissible and the appropriate course would have been to set aside the demand and leave it open to the Revenue to proceed against the appellants as permissible under law. Reliance is also placed on the decision in the case of Warner Hindustan Ltd. [1999 (113) ELT 24 (SC)] wherein a cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned by section 11A. In the present case, the appellants had challenged the order dated 21-8-98 finalising the provisional assessment under rule 9B(5) and at the second appeal stage the Tribunal held that the appellant's product is classifiable as a complete air-conditioning and refrigerating machine attracting a duty rate of 60% adv. Therefore, the demand of additional duty @20% (60% as held by Tribunal - 40% as held by Asst. Commissioner) has arisen on account of appeal filed against the final assessment order. Therefore, in view of the decision of the apex court in the Mafatlal Industries case cited supra, provisions of section 11A are applicable and since no notice has been issued to the appellant under section 11A, the impugned demands are not sustainable. Further, the ratio of the decisions of the apex court in the case of Hindustan Polymers and Warner Hindustan is squarely applicable. (5) The Deputy Commissioner is not empowered to confirm the demand @60% adv. in respect of periods 91-92 and 92-93 on the ground that he has merely followed the Tribunal' order dated 22-1-2009. The Dy. Commissioner is required to confirm the demand following CESTAT&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment. In the Mafatlal Industries case relied upon by the appellant, the apex court had clearly held that "any recoveries or refunds consequent upon the adjustment under sub-rule (5) of rule 9B will not be governed by section 11A or section 11B". Thus there is no requirement to issue a show cause notice under section 11A for recovery of duty payable upon finalization of assessment on account of change in classification or rate of duty or valuation for finalization of provisional assessment. The said view was affirmed by the hon'ble apex court in the case of ITC Ltd. [2006 (203) ELT 532 (SC)] wherein after examining the provisions relating to relevant date under section 11A, it was held that show cause notices issued under section 11A were illegal when provisional assessment was pending. While passing the said order, the hon'ble apex court followed its precedent decision in the case of Serai Kella Glass Works Pvt. Ltd. [1997 (91) ELT 497] wherein it was held that proceedings under section 11A would commence within six months from the relevant date and relevant date in respect of provisional assessment is the date when adjustment of duty is made after finalization of assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Venture [2008 (231) ELT 683] in support of this contention. In the light of the above submissions, the ld. AR prays for upholding the impugned orders and rejection of appeals. 5. We have carefully considered the submissions made by both the sides. Our findings and conclusions are detailed in the ensuring paragraphs. 5.1 It would be necessary and useful at this juncture what was the decision of this Tribunal in the earlier round of litigation when the matter was considered. The relevant extracts from the order No. A/35 to 37/09/EB/C-II dated 22-01-2009 so far as it is relevant to the present appeal is reproduced verbatim below:- "19. From the available records, it is seen that before clearance MVACs were tested for their performance only in cooling mode. The customers who bought the MVACs from the assessee also used the same in cooling mode in the refrigeration/air-conditioning machinery. We are, therefore, clear in our mind that the MVACs manufactured and cleared by the assessee cannot be called as heat pumps in the facts and circumstances of the case. 25. We have alre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipment and not as parts of refrigeration/air-conditioning machinery under sub-heading 8418.90. 28. Since the duty has been calculated as applicable to parts, as a result of our decision, it will now be necessary to re-calculate the duty demand as per rates applicable to refrigerating equipment prevalent during the relevant period from June 1991 to September 1997 and from 1/4/98 to 31/3/99. For this limited purpose, we remand the matter to the jurisdictional Asst. Commissioner/Deputy Commissioner of Central Excise and set aside the Order-in-appeal No. PII/NK/105/99 dated 30/9/99 and Order-in-appeal No. PI/NK-94/2000 dtd. 14/2/2000. The jurisdictional Asst. Commissioner / Dy. Commissioner of Central Excise shall re-calculate the duty demands after affording adequate opportunity to the assessee of being heard. 29. Appeal No. E/1482/2000 and Appeal No. E/1731/2000 are thus allowed by way of remand in the above terms." 5.2 From the order of the Tribunal, especially from the portions highlighted, it is absolutely clear that the matter was remanded only for the limited purpose of re-calculating the demand for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has been urged that the ratio of the said decisions should be applied to the facts of the present appeal. It is a settled position in law as held by the hon'ble apex Court in AlNoori Tobacco Products India Ltd. case [2004 (170) ELT 175 (SC)] that the ratio of a decision can be applied only if the facts are identical. A slight or a material change in the facts could lead to an entirely different conclusion. In the said case, the hon'ble apex court noted as follows:- "There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case." Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. The following words of Lord Denning in the matter of applying precedents have become locus classicus: "Each ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to undertake re-assessment as per the classification decided by the Tribunal and to re-compute the differential duty liability. Thus the remand order passed by the Tribunal restored the provisional assessment resorted to earlier by setting aside the final assessment order and it is in pursuance of the said remand order, the jurisdictional Dy. Commissioner passed the re-assessment order and confirmed the differential duty liability. This is clearly evident in paragraph 14 (ii) and (iii) of the order dated 31-12-2009 wherein it has been held as follows:- (ii) I confirm the classification of the MVAC under Chapter sub-heading 8418.10 of the Central Excise Tariff as a 'Refrigerating equipment' and accordingly confirm the differential duty demand of Rs. 5,30,86,840/- . (iii) All the provisional assessment orders issued under erstwhile Rule 9B of the Central Excise Rules, 1944 are hereby finalized accordingly." Thus the assessing officer has finalized the provisional assessments vide the impugned order. Therefore, the differential duty demand was raised not after the finalization of the assessment proceedings clearly emerges from the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of limitation begins from the date on which the excise duty, which is provisionally assessed, is adjusted against final assessment. This is quite clear if regard is had to the provisions of Section 11A(3)(ii)(b)." 5.7 We also find merit in the argument advanced by the Revenue that a provisional assessment retains its provisional character for every purpose. In CCE vs. Indian Oil Corporation Ltd. (supra), the hon'ble Madras High Court had held that- "2. The assessment is either provisional or final, and if it is provisional, it retains that character of being provisional for every purpose and cannot be treated as final in respect of a matter not considered. What is material is the ultimate character of the order of assessment whether it is provisional or final." The same was re-iterated by this Tribunal in the case of Orient Pre-stressed Products (P) Ltd. case and L.M. Glassfiber (India) P. Ltd. cases cited supra. 5.8 In view of the factual and legal position as discussed above, we do not find any merit in the contention of the appellant that a show cause notice should have been issued to the appellant under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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