2018 (4) TMI 899

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..... tice during the provisional assessment was bad in law and hence not sustainable - appeal allowed - decided in favor of appellant.
Shri Ramesh Nair, Member (Judicial) and Shri Raju, Member (Technical) Appearance Shri V. S. Sejpal, Advocate for Appellant Shri Sanjay Hasija, Supdt. (A.R) for respondent Per : Ramesh Nair Brief facts of the case are that the Appellants are engaged in manufacture of Insulated wares of plastics for household and tablewares and vacuum flasks falling under heading 39.24 and 96.17 of the CETA. They had filed declarations under Annexure - II with the department from time to time claiming deductions @14% on account of discount from depot sale price They were issued show cause notice alleging that scrutiny of de .....

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..... That as the clearances were provisional, therefore no duty can be demanded until the finalization of assessment. The assessment were provisional under Rule 9B for which appropriate B- 13 Bond with Bank Guarantee was executed. The assessment was finalized on 21.04.96 and hence the show cause notice dt 17.01.1996 is illegal. He relies upon decisions in case of CCE, Mumbai Vs. I.T.C Limited 2006 (203) ELT 532 (SC) and Godfrey Phillips India Ltd 2007 (211) ELT 52 (TRI) to submit that during pendency of provisional assessment no show cause notice could have been issued to them. On merits he submits that the discount was given at the time of sale as per pre determined discount structure and hence cannot be disallowed. They have been giving Trade .....

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..... xecuting Bond alongwith Bank Guarantee. Even the assessment was finalized and the differential duty was paid by the Appellant. The assessment was finalized vide Assessment order dt. 21.04.1996. However in between the show cause notice dt. 17.01.996 was issued to Appellant. Clearly the issue of show cause notice during the provisional assessment was bad in law and hence not sustainable. Our views are based upon the following judgments ; (i) CCE, Mumbai Vs. I.T.C Limited 2006 (203) ELT 532 (SC) (ii) Godfrey Phillips India Ltd 2007 (211) ELT 52 (TRI) (iii) Seraikella Glass Works Pvt. Ltd. 1997 (91) ELT 497 (SC) Thus following the precedent judgments of the Hon'ble Apex Court and the Tribunal we are of the view that the show cause notice .....

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