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TMI Blog2018 (8) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... as it then existed during the contemporary period of taxable event of manufacture and removal of goods took place. The Rule governing the obligations or liability of the Respondent-assessee relevant on the date of removal of goods and payment of provisional duty will apply, rather than the Rule as amended subsequently after which, the belated order came to be passed by the Assessing Authority in the year 2006. No substantial question of law arises in the present appeals filed by the appellant-Revenue - appeal dismissed - decided against appellant-Revenue. - C.E.A.Nos. 30/2017 & 62/2017 C/W C.E.A.No. 66/2016 - - - Dated:- 20-6-2018 - Dr. VINEET KOTHARI AND Mrs. S. SUJATHA JJ. Mr. K.V. Aravind, Adv. for Appellant-Revenue Mr. K. Parameswaran Mr. Krishnamurthy P, Advs. for Respondent-assessee JUDGMENT Dr. VINEET KOTHARI J. The Appellant/Revenue-Commissioner of Central Excise has filed these appeals u/s. 35G of the Central Excise Act, 1944 (for short Act ) against the Respondent/assessee - M/s.Indian Telephone Industries Limited (a Central Government Public Sector undertaking) purportedly raising the substantial question of law about the adjustment/refun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed an order on 28.11.2002 vide Annexure-A under Rule 9B of the Rules but he did not determine the provisional duty short paid in excess in the said order. That is how another order came to be passed by the said Assessing Authority vide Annexure-B on 29.12.2006 in which the said Authority viz. Assistant Commissioner of Central Excise, Bangalore I Division, did not allow the adjustment/refund of the excess provisional duty paid by the Respondent-assessee for the period in question and that is why the Respondent-assessee had to take the matter further before the Commissioner of Central Excise (Appeals-I), Bangalore, who vide order dated 21.08.2007 vide Annexure-D in the aforesaid appeal allowed the said adjustment/refund to the Respondent- assessee and also determined the short duty paid under Rule 9B(5) of the said Rules. The operative portion of the Order passed by the Commissioner of Central Excise (Appeals-I), Bangalore, is quoted below for ready reference: ORDER I modify the impugned order no.C.No.V/85/17/9/2000.P.A, dated 29-12- 2006, passed by the Assistant Commissioner of Central Excise, Bangalore I Division, Bangalore to order adjustment of the duty paid in e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Members of the Bench and the issue was decided by the third Member. It was held that the assesse is entitled for adjustment of excess paid duty with the short-paid duty during the period of provisional assessments, upon finalization of the assessments. Inasmuch as the issue is decided by the majority decision of the Tribunal in favour of the assessee, we find no merits in the Revenue s appeal. The same is accordingly rejected . Since the facts involved in the present two appeals as well as the issues are identical, we find no merits in the Revenue s appeals. By following the earlier order of the Tribunal, we reject the Revenue s appeals. Sd/- Sd/- V. PADMANABHAN S.S. GARG TECHNICAL MEMBER JUDICIAL MEMBER 7. Aggrieved by the same, the appellant- Revenue has preferred the aforesaid appeals before us viz. C.E.A.No.30/2017 C.E.A.No.62/2017. The connected appeal filed by the appellant-Revenue namely C.E.A.No.66/2016 arose from the order of the learned Tribunal dated 10.02.2016 arising from the order of the Commissioner of Central Excise (Appeals-I), Bangalore, on 21.08.2007 relying upon the same Larger Bench decision of the Tribunal. 8. The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. It was clarified that only if an independent refund claim is made and if any adjustment under Rule 9B(5) reagitating the same issue is made, then only such claim will attract the provisions of Section 11B of the Act. The relevant extract of the judgment is quoted below for ready reference: 10. In the light of what is stated above, we now quote hereinbelow Para 104 of the judgment of this Court in the case of Mafatlal Industries Ltd. (supra):- 104. Rule 9B provides for provisional assessment in situations specified in clauses (a), (b) and (c) of sub-rule (1). The goods provisionally assessed under sub-rule (1) may be cleared for home consumption or export in the same manner as the goods which are finally assessed. Sub- rule (5) provides that when the duty leviable on the goods is assessed finally in accordance with the provisions of these Rules, the duty provisionally assessed shall be adjusted against the duty finally assessed, and if the duty provisionally assessed falls short of or is in excess of the duty finally assessed, the assessee shall pay the deficiency or be entitled to a refund, as the case may be . Any recoveries or refunds consequent upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to enquire into it against the Government of India Undertaking (ITI Ltd.) is not palatable, especially because the customer or purchaser of Teleequipments from the Respondent/assessee-ITI Ltd., was none else than Central Government Department (DOT) itself or BSNL (yet another Government of India Undertaking). Therefore, who was getting unjustly enriched at whose cost is anybody s guess, but still the Excise Officer of the Central Government in the Central Excise Department chose to put public money in precious man hours and other resources in the whirlpool of litigation at various Forums by taking a rather too narrow and pedantic approach in the matter. When the substance is lost at the altar of technicalities, it can so happen, but such cases only re-emphasize the need of training the tax collectors in a better manner, for which a call deserves to be taken by the Central Government only and not by the Constitutional Courts. 15. We are all the more concerned to note that once the controversy had been settled by the decision of Hon ble Supreme Court on the interpretation of the provisions of Rule 9B(5) of the Rules vis- -vis Section 11B of the Act in the case of Allied Photo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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