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TMI Blog1999 (8) TMI 967X X X X Extracts X X X X X X X X Extracts X X X X ..... respective registered factories at these three locations to a large number of depots maintained by them throughout the country. Shri Thakur submits that in these cases there are no sales involved from the factory gate and all clearances are first made from the factory to the depots and thereafter, in due course of time, goods are sold from these depots to the ultimate buyers. While by very nature of the items on which abatements from the assessable value had been claimed by them, he submits that the information necessary to compute the exact quantum of these abatements during any period of time were not readily available, under this marketing pattern, when the goods were cleared on payment of duty from the factory gates. He further submits that though while interacting with the Divisional officers and Range Superintendents, they had been made aware of this problem concerning the fixation of correct assessment values, the Assistant Commissioners at Tirunelveli and Madurai-I did not resort to provisional assessment under Rule 9B even though the ingredients of that rule were fully satisfied by the facts of these cases. As far as the Assistant Commissioner at Tuticorin is concerned, S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese facts, all these assessments were deemed to be remained provisional is correct in law. He submits that there is nothing arbitrary about this decision of the ld. Commissioner (Appeals) as he has drawn support from the decisions cited in the Orders-in-Appeal. In particular, Shri Thakur submits that in the case of M/s. Balaji Fasteners as reported in 1990 (46) E.L.T. 543 (Tri.), the Tribunal had held that at the time of assessment under Rule 173-I, the assessing officer was required by the said rule to make the adjustments between duties paid in excess and duties found short-paid. Shri Thakur also submits that ld. Commissioner (Appeals) has rightly referred to the decision of the Hon ble Tribunal in the case of M/s. Balaji Cement Products as reported in 1997 (93) E.L.T. 691 (Tri.) wherein it was held that in the cases where freight and insurance cannot be estimated at the time of clearance of goods from the factory gate, assessment would be treated as provisional. Similarly, ld. Commissioner (Appeals) reliance on the decision of the Hon ble Apex Court in the case of Samrat International (P) Ltd. as reported in 1992 (58) E.L.T. 561 (S.C.) that no bond is required under Rule 9B wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir submission that bonds and securities were not furnished. Ld. DR says that however, in the other two jurisdictions, provisional assessment was not allowed at all. 5. On this point, Shri Thakur rises to submit that as far as Tuticorin is concerned, a bond for ₹ 2,00,000/- and bank guarantee of ₹ 50,000/- from State Bank of Tranvancore had been submitted to the Divisional officers. Therefore, it is not factually correct that no bond and bank guarantee had been submitted. 6. Ld. DR contends that the bond amount and bank guarantee were not sufficient to cover the entire clearances and additional bonds and sureties were not given. Ld. DR further emphasises that because assessments were not provisional, therefore it was incumbent upon the appellants to seek refund of excess payments only through the prescribed mechanism of a refund claim under Section 11B. Since they have not done it, such claims for adjustment of excess amounts were beyond the purview of the Assistant Commissioner of Central Excise when they passed the Orders-in-Original concerned. He further submits that if there are no provisional assessments, then there is no question of adjustment of short-paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olutely necessary for calculating the correct assessment value would be available only after the goods are sold from the depots and the depots report this factual data to the assessee s factories, then this marketing pattern and situation is clearly covered by the situations enumerated under Rule 9B. This being so, even if there was no formal order by the Assistant Commissioner, Central Excise, the decision of the ld. Commissioner (Appeals) to hold these clearances under provisional assessments cannot be faulted with. This view is supported by the decision of the Hon ble Tribunal in the case of Balaji Cement Products supra in which case also a situation arose where the freight and insurance could not be estimated at the time of clearances of goods and therefore, the Tribunal had held that the assessments would have to be, of necessity, treated as provisional. The facts of this case are identical as already noted above and therefore, we find that ld. Commissioner (Appeals) has rightly applied the ratio of this decision to the facts. We also do not find any fault with his finding that when such provisional assessments are finalised, then the duties paid in excess have to be adjusted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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