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TMI Blog2024 (8) TMI 714X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Consequently, the learned Commissioner (Appeals), dropped the excess amount relating to addition of packing and forwarding charges and value of software in arriving at the assessee value as proposed by the department. Applying the same principle he has also rejected the claim of the appellant that the excess amount of the duty, if any, paid due to various reasons, not raised at the time of finalisation of assessment under Rule 9B of Central Excise Rules, 1944, the Order of assessment being not challenged, cannot be raised at the quantification of demand. The learned Commissioner has confused between assessment and quantification. Once the provisional assessment is finalised taking note of the elements to be considered in determining the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s could not be determined as the price of the goods sold to Department of Telecommunications, Government of India against contracts, which provide various variation clauses on certain factors, finalised after a period of time from their final clearance from the factory. Consequently, their assessment was made provisional under Rule 9B of the Central Excise Rules, 1944 by an order dated 16.10.2001, which has been extended from time to time. After receiving the final price, the appellant approached the jurisdictional authorities for finalisation of their assessment. Consequently, the assessment order was passed on 10.03.2003. 2.2. On the basis of the said final assessment order, duty has been quantified and for the period 2001-2002 after adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laimed by the appellant on account of credit notes issued for wrong billing, short-supply, incorrect calculation of duty, price escalation etc. and corrigendum for deductions / adjustments from the total duty payable amounting to Rs.1,38,76,301/- along with interest. Hence, the present appeal. 3.1. At the outset, the learned advocate for the appellant has submitted that they are aggrieved by the impugned order to the extent of upholding demand of Rs.1,38,76,301/- relating to credit notes issued towards wrong billing, short-supply, incorrect calculation of duty, price escalation etc. and corrigendum while adjusting excess duty against short-payment of duty during the process of quantification of demand. They have submitted that excess duty t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1944 deals with claim for refund whereas Rule 9B CER 1944 deals with making adjustment of duty on finalisation of assessment. In case of Rule 9B, the assessee need not comply with Section 11B; hence both operates in a difference sphere. 3.4. Further he has submitted that the burden of the excess differential duty was not passed on to their buyers during the material period. Referring to the purchase orders of BSNL, he has submitted that the price fixed for the goods supplied is inclusive of all duties / levies; any increase in taxes and other duties/levies, after the expiry of the delivery date shall be to the contractors account. However, benefit of any decrease in the tax/duties shall be passed on to the purchaser by the supplier. 4. Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee in terms of sub-rule 9B(5) of the erstwhile Central Excise Rules, 1944 and Rule 7 of the Central Excise Rules, 2001. 9. The duty amount paid by the assessee subsequent to the clearance of the goods shall be appropriated towards demand indicated in the previous para. The assessee shall pay the remaining amount of duty along with interest leviable in terms of the said Rules, if any, due from them on account of finalisation of provisional assessment, soon after the demand is received by them from the said Superintendent of Central Excise. 10. Since the above order is not inconsistent with the assessee s claim as to the basis on which the provisional assessment is sought to be finalized, putting them to notice or hearing them in perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious reasons, not raised at the time of finalisation of assessment under Rule 9B of Central Excise Rules, 1944, the Order of assessment being not challenged, cannot be raised at the quantification of demand. 11. We find that the learned Commissioner has confused between assessment and quantification. Once the provisional assessment is finalised taking note of the elements to be considered in determining the assessable value subsequent additions or alterations of certain elements of deduction or expenses relating to sale would be in contravention to the finalisation order of the assessment. 12. However, in the present case, at the time of quantification of the demand, the appellant claimed certain corrections in the quantification amount by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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