Customs, Excise and Gold Tribunal - Mumbai
Cce vs Eastwell Asbestos Ind. (P) Ltd. on 15 February, 1999
Equivalent citations: 1999(83)ECR87(TRI.-MUMBAI)
ORDER Jyoti Balasundaram, Member (J)
1. In this case, the Superintendent of Central Excise while assessing RT-12 returns filed by the assessee, M/s. Eastwell Asbestos Ind. Pvt. Limited for the months of April, 1992 and May, 1992 pointed out short levy. The assessee were informed that they were not entitled to the benefit of exemption in terms of Notification 175/86 during the period from 1.4.1992 to 21.5.1992 since there was a unit registered with DGTD and such unit was not covered by exemption Notification 175/86. The Collector (Appeals) to whom the assessee filed an appeal, held that show cause notice for demanding differential duty was required in the instant case where goods have been cleared in accordance with an approved classification list and he, therefore, set aside the Assistant Collector's order on ground of violation of principles of natural justice for non-issue of show cause notice and he left it to the jurisdictional Superintendent/Assistant Collector to take such action as is permissible under the law. Hence this appeal by the Revenue which contends that assessment on RT-12 return is sufficient for the purpose of raising a demand of short levy of duty.
2. We have heard Shri V.M. Udhoji, learned Departmental Representative who relies upon the judgment of the Apex Court in the case of Serai Kella Glass Works Pvt. Limited v. Collector of Central Excise, Patna and perused the records since non-appearance for the respondent inspite of notice.
3. We find that in the decision relied upon by the learned Departmental Representative it was a case of provisional assessment where the High Court quashed the provisional assessment and directed the assessments to be made afresh in accordance with the guidelines given by it and it was in this context the Supreme Court held that no question of giving any notice under Section 11A arises at this stage. The relevant extracts from the Judgment of the Hon'ble Supreme Court are given below:
15. In the instant case, the High Court after quashing the provisional assessment, directed the assessments to be made afresh in accordance with the guidelines given by it. No question of giving any notice under Section 11A arises at this stage. The provisional assessment was quashed by the High Court and direction was given to recompute the value of the goods. This could only be done in accordance with the substantive provisions of Section 4 and in accordance with the procedure laid down in Rule 173-I which at the material time stood as under:
Assessment by proper officer.--(1) The proper officer shall on the basis of the information contained in the return filed by the assessee under Sub-rule (3) of Rule 173G and after such further inquiry as he may consider necessary, assess the duty due on the goods removed and complete the assessment memorandum on the return. A copy of the return so completed shall be sent to the assessee.
(2) The duty determined and paid by the assessee under Rule 173F shall be adjusted against the duty assessed by the proper officer under Sub-rule (1) and where the duty so assessed is more than the duty determined and paid by the assessee, the assessee shall pay the deficiency by making a debit in the account-current within ten days of receipt of copy of the return from the proper officer and where such duty is less, the assessee shall take credit in the account-current for the excess on receipt of the assessment order in the copy of the return duly countersigned by a Superintendent of Central Excise.
16. The assessee is entitled under Rule I73F to determine his liability for copy on the excisable goods manufactured by him and to remove such goods on payment of duty on self assessment in accordance with the provisions laid down in the Rules. But this is only the first step in making of the assessment. The proper officer is empowered to assess the duty on the goods so removed by the assessee and complete the assessment on the return filed by the assessee. A copy of the return so computed by the proper officer has to be sent to the assessee. The duty assessed and paid by the assessee on self assessment will be set-off against the duty assessed by the proper officer. If the duty paid by the proper officer on final assessment is more than the duty determmed and paid by the assessee, the assessee has to pay the deficiency by making a debit in the account-current within ten days of the receipt of the copy of the return from the proper officer. If the duty on final assessment payable by the assessee is less than what he has actually paid, the assessee is entitled lo take credit in the account-current for the excess payment. No question of any show cause notice under Section 11A arises at this stage. The duty has to be paid by making adjustment in the account-current which has to be maintained by the assessee within ten days' lime.
17. Section 11A deals with recovery of duty not levied or not paid or short levied or short-paid or erroneously refunded. Proceedings under Section 11A have to be commenced with a show cause notice issued within six months from the relevant date. 'Relevant date' has been defined under Sub-section 3(ii) to mean in a case where duly of excise is provisionally assessed under this Act or the rules made thereunder, the date of adjustment of duty alter the final assessment thereof.
4. The Supreme Court held in paragraph 18 of its judgment that it is only when even after final assessment and payment of duties, it is found that there has been a short levy or non levy of duty, the Excise Officer is empowered to take proceedings under Section 11A within the period of limitation after issuing a show cause notice. In the case before us, there is no dispute that a final assessment had taken place and goods had been cleared after final assessment and payment of duty. Hence, legal requirement of issuing show cause notice exists under Section 11A and in view of the decision of the Supreme Court in the case of Collector of Central Excise v. Kosan Metal Products Limited reported in 1998 (38) ELT 573 (SC) : 1989 (20) ECR 30 (SC) : ECR C 1274 SC where in the. Supreme Court held that in the case of final assessment, when demand for short levy, non-levy, etc. is to be made issue of notice under Section 11A of the Central Excise Act would be directly applicable. Therefore, we see no infirmity in the impugned order and accordingly upheld the same and reject the appeal.
Pronounced and dictated in the open court.