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TMI Blog2023 (11) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... out any evidence that this was done by the Assistant Commissioner by passing a suitable order to this effect. The Show Cause Notice dated 22.02.1996 was issued in belated manner after about 3 years 8 months from the date of initial finalization done by AC on 11/12/1992. If it is taken that the Department had challenged this OIO and the price list approved by the Assistant Commissioner was finalized only after the OIA was passed on 19/04/1994, even from this date of OIA i.e. 19/04/1994, there is delay of more than 22 months in issuing the Show Cause Notice. After going through the relevant paragraph of the judgment of the Hon ble Supreme Court, in the case of MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [ 1996 (12) TMI 50 - SUPREME COURT] , it is seen that the Apex Court has made it clear that what is applicable to the assesse is made equally applicable to the Revenue also. Therefore, the Revenue cannot take the pleading that the provisions of Section 11A are not applicable to them in case of finalization of provisionally assessed RT-12 Returns. There are force in the Appellant s arguments that the Show Cause Notice issued on 22/02/1996 has to be assumed as premature if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred since the provisional assessment was finally assessed on 11/12/1992 and the Show Cause Notice was issued only on 22/2/1996. Further it was held that even if it is assumed that the assessment was finalized only on 31/10/1996, issue of Show Cause Notice on 22/02/1996 would be premature. 3. Being aggrieved, the Department filed an Appeal before the Tribunal on 10/03/2005. The Tribunal remanded the matter to the Commissioner (Appeals) vide their Final Order dated 31/03/2008 with a direction to consider all the grounds taken by the Department and assesse. The Commissioner (Appeals) vide the impugned OIA No. 53/CE/B-II/2008 dated 26/12/2008 confirmed the demand and held that interest is also required to be paid under Rule 7 of the Central Excise Rules, 2002. Being aggrieved, the Appellant is before the Tribunal which has come up for hearing before us today. 4. The Learned Counsel appearing on behalf of the Appellant submits that the Excise Duty for the period under dispute was provisionally assessed on 10/03/1992 and the same was finalized by the Assistant Commissioner vide his Order dated 11/12/1992. In this finalized Order, the Appellant was allowed the benefit of deduction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that when Order for final assessment is challenged under Rule 9B (5), the provisions of Section 11B would be applicable. The Supreme Court also says that It follows logically that position would be the same in the converse situation . He submits that even in respect of the Department, they are bound to issue the Show Cause Notice and they are also bound by the limitation placed under Section 11A. Section 11A clearly provides that the relevant date for issue of SCN where the duty is provisionally assessed, it is the date of adjustment of duty finally adjusted. In the present case, the final assessment was done on 11/12/1992. In such a case, the present Show Cause Notice should have been issued within 6 months (normal period at that point of time). However, admittedly, the Show Cause Notice was issued on 22/02/1996, wherein the provisions of extended period were not invoked. Another stand taken by the Appellant is that if the assessment was not finalized on 11/12/1992, but was finalized only on 31/10/1996 when the Superintendent of Central Excise the Finalized Assessment of RT- 12 Returns is taken as the date of assessment, the Department could not have issued the present Show Cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is required to be dismissed. 11. Heard both sides and perused the documentary evidence and the cited case law. 12. From the chronological events discussed above, it is seen that the Price List was provisionally assessed on 10/3/1992 and was Finally Approved on 11/12/1992. The Assistant Commissioner has passed an Order allowing deduction of JPC from the assessable value. The Appellant has followed this Order for their clearance during March 1992 to May 1993. In the absence of any Stay or adverse Order against this OIO during the period March 1992 to May 1993, it has to be concluded that the Appellant has followed the finalized price list which was available with them during that period. This being so, the Commissioner (Appeals) has set aside the OIO dated 11/12/1992 vide his OIA dated 19/04/1994. On going through this OIA, it is seen that he has given direction to the Assistant Commissioner to approve the price list after adding the JPC Cess. The Department has not brought out any evidence that this was done by the Assistant Commissioner by passing a suitable order to this effect. After more than two and half years from the date of this OIA, the RT-12 Returns have been finaliz ..... X X X X Extracts X X X X X X X X Extracts X X X X
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