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TMI Blog2018 (10) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... e various prerequisites, enumerated by the appellant while adverting to the nature of assessment, would not be essential to the extent that the circumstances did not admit to an absence of doubt about the finality of the assessment. It is the normal practice for assessment to be provisional when the duty liability is discharged at the time of clearance from the factory gate without simultaneous delivery of the goods to the customer. The liability to duty, arising after abatement of the various cost claimed to be post-manufacture, is an obligation under law. The limitation on demand of duty will have to be established on substantial grounds and not by recourse to a claim for disallowance of provisional assessment. In the absence of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich had been considered by the lower authorities during the earlier round of litigation with the sole remaining points finalised by the Tribunal during the former round; however, on the issue of the assessment being provisional or otherwise, the Tribunal left it to the lower authorities to render a finding. 2. The original authority has held that the assessments were provisional and directed the assessee to cooperate with the proper officer in finalising the differential duty liability in consonance with the order-in-original passed for the different periods and on the different issues. Commissioner of Central Excise (Appeals), Kolkata II vide order in appeal no. 38/KOL-II/2011 dated 23rd March 2011 upheld the order of the lower aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operate retrospectively and that the Central Board of Excise Customs has, in circular no. 13/90-CX.6 dated 25th May 1990, mandated the prerequisite of order under rule 9B of Central Excise Rules, 1944. According to Learned Counsel, the decision of the Tribunal in Vibha Chem Products Private Limited v. Commissioner of Central Excise, Vadodara [2008 (229) ELT 447 (Tri-Ahmd)] upholds their contention that an endorsement in the returns is an essential requirement for provisional assessment. He, therefore, pleads that the entire demand is barred by limitation. 4. Learned Authorized Representative contends that in SRF Ltd v. Commissioner of Central Excise, Trichy [2010 (261) ELT 1055 (Tri- Chennai)], the Tribunal has held that a request from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oting of provisional assessment and the various securities attached to such assessment, there can be no provisional assessment and, consequently, any demand beyond the normal period of limitation in section 11A of Central Excise Act, 1944 would not lie against them. 6. Considering the multiple correspondences relating to claims for abating of certain components of the sale price in computation of assessable value, it would appear that the submission and contention of the assessment not being provisional was intended to overcome the disallowance of some of the abatements. It is clear from the various decisions of the Hon ble Supreme Court and of the Tribunal that the various prerequisites, enumerated by the appellant while adverting to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordance with the procedure for provisional assessment. In such a situation clause (e) of para (B) of the Explanation under Section 11B will be attracted. In this case the RT-12 Return for the month of April, 1985 was filed on 8-5-1985 and the same was assessed on 29-10-1985. It is, therefore, only from the date of this assessment that time-bar in Section 11B will operate. In the present case the refund application had been filed on the 30th of October, 1985. It cannot, therefore, said to be time barred. 7. It is the normal practice for assessment to be provisional when the duty liability is discharged at the time of clearance from the factory gate without simultaneous delivery of the goods to the customer. The liability to duty, arising ..... X X X X Extracts X X X X X X X X Extracts X X X X
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