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TMI Blog2008 (3) TMI 257X X X X Extracts X X X X X X X X Extracts X X X X ..... n, Member (T) Shri V.J. Sankaram, Advocate, for the Appellant. Shri T.C. Raja Dass, SDR, for the Respondent. [Order per: T.K. Jayaraman, Member (T)]. - This appeal has been filed against Order-in-Appeal No. 134/2003, dated 31-10-2003 passed by the Commissioner of Customs and Central Excise (Appeals), Hyderabad. 2. Shri V.J. Sankararn, learned Advocate appeared on behalf of the appellants and Shri T.C. Raja Dass, SDR for the Revenue. 3. We heard both sides. The appellants are the manufacturers of electric wires and cables which are excisable. They were assessing the underground telephone cables manufactured by them under the erstwhile Rule 9B of Central Excise Rules, 1944 on a provisional basis vide Clause (d) of the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were highly aggrieved over the impugned order of the lower authority. Therefore, they approached the Commissioner (A). The Commissioner (A) in the impugned order upheld the order of the Asst. Commissioner. Hence, the appellants have come before this Tribunal. 4. The learned advocate submitted that the appellants are a Government of India undertaking setup in 1974. The goods were being supplied to the Department of Telecommunication (DoT). The contract entered by the appellant with the purchasers namely DoT contain price variation clause. In terms of the contract, the price could be settled at appropriate level if the value of the copper in the goods supplied were to be revised. In view of the above position, it was urged that the prices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permission for provisional assessment was not liable to be denied on the ground that any formal request had not been made by the assessee at the commence of the financial year. 5. On the other hand, the learned SDR relied on the decision in the case of Rajiv Mardia v. CCE C, Indore - 2000 (118) E.L.T. 627 (Tribunal-LB) wherein it is held that compliance with requirement of Rule 9B is necessary for provisional assessment. He also relied on the Tribunal's decision in the case of Hindustan Wires Ltd. v. CCE, Delhi-II - 2003 (151) E.L.T. 679 (Tri.-Del.) wherein it was held that formal request for provisional assessment in terms of Rule 9B is very necessary. 6. On a very careful consideration of the facts, we find that the pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he financial year. In this case, there was definitely a request for provisional assessment but the only objection is not furnishing a Bond and Bank Guarantee. The Revenue's approach in denial of provisional assessment is shortsighted because when the assessment is provisional, the duty initially paid may be less and the assessee may have to discharge the short payment at the time of finalisation. If the department holds such assessments as final, then Revenue would be put to loss. When it is very clear that the initial price is subject to variation, the Revenue officers are bound to order assessments on provisional basis. Their refusal would at times endanger the revenue. In these circumstances, we do not find any merit in the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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