9911796707
TMI Blog2018 (3) TMI 625X X X X Extracts X X X X X X X X Extracts X X X X ..... EGHUNATHAN THAMBURAN, SC, CENTRAL BOARD OF EXCISE & CUSTOMS JUDGMENT Vinod Chandran, J. The challenge in the writ petition was to Ext.P13 order, in revision, for two periods, wherein provisional assessments were made. The initiation of proceedings for the period 1.2.2006 to 31.7.2006 was by Ext.P5 show cause notice. The other period which we are concerned with, is from 1.2.2007 to 31.7.2007, the show cause notice of which has not been produced. The proceedings ended with finalisation of provisional assessments under Rule 7 of the Central Excise Rules, 2002 ('the Rules' for short) for the two periods; respectively by Exts.P7 and P11. In Ext.P7, the period between 1.2.2006 and 31.7.2006 is alleged to be treated as two separate bloc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the block period of six months and the excise duty calculated, provisionally, for the purposes of Rule 7, in the context of the permission given under Rule 7 at Ext.P3 & P9 being for a six month period. 3. Sub-Rules (1) and (3) of Rule 7, of the Rules, as they are relevant, are extracted hereunder:- Rule 7. Provisional assessment:- (1) Where the assessee is unable to determine the value of excisable goods or determine the rate of duty applicable thereto, he may request the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, in writing giving reasons for payment of duty on provisional basis and the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... six months' period as provided under sub-Rule (3) to contend that the Rule stipulates an assessment to be made for the entire block period of six months. We are unable to countenance such an argument, since the returns have to be filed after the last date of a particular month and the duties with respect to that month have to be paid before the 5th or 7th of the next month. There can never be intended a provisional assessment for a block period of six months, going by the periods stipulated in sub-Rule (3); which is only the period prescribed for completion of the final assessment as per the provisional returns filed by the assessee. In such circumstances, we do not see any reason to interfere with the finalisation of provisional assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and the demand was raised together for the four month period, for which the details were furnished by the assessee through letter dated 01.09.2006. The assessee's objection was to the effect that the provisional assessment has to be made for the block period of 6 months as permitted in Ext.P3. Ext.P3 is only a permission for payment of provisional duty, as applied for under Rule 7(1), for reason of the assessee being unable to determine the exact duty payable. Sub- Rule (3) of Rule 7, as already found, merely provides for a six month period to finalise the provisional assessment and it does not contemplate a block assessment. 7. The objection of the assessee as is discernible from Ext.P6 was insofar as the assessment of two months ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , an order similar to Ext.P3. Therein the computation is made for the two separate block periods the first of which is four months period between 01.02.2007 and 31.05.2007 wherein a loss of 240.585 M.T was determined as reported by the assessee. The two months period between 01.06.2007 and 31.07.2007 showed a gain of 176.229 M.T. Here the assessment was made treating the returns for the two separate periods of four and two months and the assesses objection is with respect to the gain in the two month period being not set off in the loss of the four month period since the two fall within the six month period arising from Ext.P9 order. The assessee's contention cannot be sustained since there could be no clubbing of the various months fal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision for suo motu revision of an assessment, in the event of an opinion formed, of the assessment being prejudicial to the revenue. The Revenue having not taken up any of such remedies, there could be no order made in the appeal filed by the assessee; to its prejudice. 11. As to the claim for set off, of the gain for the subsequent two months period, against the losses of the earlier four months period, we reject the contention raised by the appellant/assessee. We also observe that in the first period covered by Ext.P3 the assessee was found to have set off the gain determined for a particular month, in the opening stock of the succeeding month. In that context there can be no claim for set off of gains against losses; which would re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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