Custom, Excise & Service Tax Tribunal
Cce, Chennai vs M/S. Ttk Healthcare Ltd on 1 April, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal Nos. E/472 & 473/2004
(Arising out of Order-in-Appeal No.12/03 (M IV)(D) and No.13/03 (M IV)(D) both dated 15.12.2003 passed by the Commissioner of Central Excise (Appeals), Chennai)
For approval and signature:
Honble Smt. Jyoti Balasundaram, Vice President
Honble Shri P. Karthikeyan, Member (T)
1. Whether Press Reporters may be allowed to see the Order for Publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether the Members wish to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
CCE, Chennai Appellant
Vs.
M/s. TTK Healthcare Ltd. Respondents
Appearance Shri N.J. Kumaresh, SDR for the Appellant Shri P.C. Anand, Consultant, for the Respondents CORAM Honble Smt. Jyoti Balasundaram, Vice-President Honble Shri P. Karthikeyan, Member (T) Date of Hearing: 01.04.2009 Date of Decision: 01.04.2009 Final Order Nos. ____________ Per Jyoti Balasundaram The respondents herein are manufacturers of P or P medicaments, ayurvedic medicaments and Woodwards gripe water. The goods manufactured are stock transferred to various depots all over India and actual sale took place only at the depots. Accordingly, assessments for the period in dispute were made on provisional basis in terms of erstwhile Rule 9B of the Central Excise Rules, 1944 for the reason that the actual percentages of abatements and discounts allowed were not known at the time of clearance from the factory. Abatements were sought in respect of elements such as freight, insurance, turnover tax and quantity discounts. The actual percentages of abatements are known only after the end of the respective accounting years on the finalization of the accounts. Proposals for the finalization of the assessment for the period from 1988 1989 to 1999 2000 supported by a certificate issued by the Chartered Accountant was verified by the Range Officer and on the basis of such verification provisional assessment was finalized vide Order-in-Original No. 31/2001 dated 11.9.2001 holding that the assessee was liable to pay differential duty of Rs.56,015/- for the year 1988 89 and the assessee was eligible to refund for the subsequent years. Similarly, based on the Range Officers verification report supported by Chartered Accountants certificate, the provisional assessment for the years 200001 was finalized vide Order-in-Original No. 12/02 dated 30.4.2002 by the Assistant Commissioner, also indicating that the assessee was eligible to refund. Neither finalization order mentioned the duty finally assessed and the duty so adjusted with the duty provisionally paid in terms of Rule 9B and the finalization order also did not bear out the accuracy of the abatements claimed with reference to the verification made by the adjudicating authority. Appeals were therefore preferred before the Commissioner (Appeals) on the grounds inter alia that the provisional assessment was not finalized in terms of Rule 9B. The Commissioner (Appeals) dismissed the appeals of the Revenue on the ground that the Department had not adduced evidence substantiating any error in verification and computation of the amount due by way of refund, by the Range Superintendent or Assistant Commissioner or Chartered Accountant. The Revenue has preferred the above appeals on the grounds inter alia that the finalization of the provisional assessment was not done in accordance with Rule 9B and the further ground in the Revenues appeal is regarding the discrepancy in verification of amounts found to be due as refund to the assessee.
2. We have heard both sides. The finalization order of the provisional assessment does not contain details such as rate of duty, value at which duty was paid provisionally and value at which duty was finalized and the amount of differential duty involved. The quantum of provisional duty assessed and paid and the finalization of duty paid was also not determined in the order finalizing the provisional assessment. In these circumstances we are of the view that the Commissioner (Appeals) should have allowed the appeal of the Revenue by holding that proper order was required to be passed in terms of Rule 9B of the Central Excise Rules. Since there is no order of finalization of provisional assessment in accordance with the provisions of Rule 9B, we set aside the orders of the Commissioner (Appeals) and remit the case to the adjudicating authority for passing order of finalization of provisional assessment in accordance with law.
3. The appeals are thus allowed by way of remand.
(Dictated and pronounced in open court)
(P. KARTHIKEYAN) (JYOTI BALASUNDARAM)
Member (T) Vice President
Rex
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