Customs, Excise and Gold Tribunal - Mumbai
Commissioner Of Central Excise vs White Cliff Tea And Hindustan Lever Ltd. on 23 February, 2004
Equivalent citations: 2004(168)ELT413(TRI-MUMBAI)
ORDER K.D. Mankar, Member (T)
1. These two appeals from the revenue deal with common grounds hence are decided together. However, for the sake of illustration the facts are extracted from E/3829/01-Mum.
1.1 E/3829/01-Mum.
The revenue's instant appeal is directed against the order-in-appeal whereby the refund claim of the respondents viz. M/s Hindustan lever limited, which the original authority rejected as time barred was allowed by Commissioner (Appeals). The respondent's contention that, the refund could not be held as time barred for the reason that, the assessment was provisional and the claim was within the stipulated limitation from the date of finalisation of the assessment was rejected by the Assistant Commissioner, whereas this plea was accepted by the Commissioner (Appeals). Hence the present appeal from the revenue.
2. Heard both sides.
2.1 Admissibility of the claim is not disputed and hence the merits of claim need not be discussed.
2.2 The respondents have pleaded that, they have complied with the provisions contained in Rule 9 B of the Central Excise Rules 1944, to claim that the assessment was deemed to be provisional, notwithstanding the fact that the jurisdictional Assistant Commissioner, did not pass a formal order permitting provisional assessment. It was pleaded that, vide their letter dated 3.6.98 addressed to the Assistant Commissioner, Central Excise, Division-II, Nagpur, a request for provisional assessment of blended tea was made. In the said letter, the difficulties encountered in ascertaining the actual quantum of permissible deductions to arrive at the assessable value of the said goods were explained. In the order of the adjudicating authority, receipt of this letter is not disputed. The respondents also have shown the acknowledgement receipt of Range Office on their copy of the letter.
3. The point of dispute is, as to whether or not, on making a request for provisional assessment, which is acknowledged by the departmental authorities, the assessments of the goods cleared thereafter can be legally treated to be "provisional" in terms of the provisions contained in Rule 9 B. In this connection, the text of Rule 9B(1) is reproduced below:
"RULE[9B, Provisional assessment to duty.-- (1)Notwithstanding anything contained in these rules, -
(a) where the assessee is unable to determine the value of excisable goods in terms of Section 4 of the Act on account of non-availability of any document or any information; or
(b) where the assessee is unable to determine the correct classification of goods while filing the declaration under Rule 173B;
the said assessee may request the proper officer in writing giving the reasons for provisional assessment to duty, and the proper officer may direct after such inquiry as he deems fit, that the duty leviable on such goods shall be assessed provisionally at such rate or such value (which may not necessarily be the rate or price declared by the assessee) as may be indicated by him, if such assessee executes a bond in the proper form with such surety or sufficient security in such amount, or under such conditions as the proper officer deems fit, binding himself for payment of difference between the amount of duty as provisionally assessed and as finally assessed:
Provided that all clearances in respect of excisable goods covered under such request by the assessee submitted with the proper officer under the dated acknowledgement shall be deemed to be cleared as provisionally assessed to duty at such rate or at such value as declared by the assessee, till the date when the direction of the proper officer is issued and communicated to the assessee :
Provided further officer where he is satisfied that the self-assessment made by the assessee is not in order, he may direct him to resort to provisional assessment and on receipt of such directions the assessee shall comply with such directions.]"
4. As can be seen from the text of the Rule 9B(1), on receipt of a request from the assessee for provisional assessment, the proper officer is required to direct the assessee after making enquiry etc. as to at what rate or value, the duty is required to be paid along with execution of bond if proper officer deems it fit, covering the difference between the duty paid provisionally and that finally assessed.
5. Admittedly no such direction was given by the proper officer, and no bond was directed to be executed. Therefore, it is claimed that, there was no provisional assessment. The Ld. Commissioner (Appeals) on relying on the judgments in the case of Mardia Steel Ltd. v. CCE, Indore 2001 (43) RLT 533 (CEGAT-LB). Samrat International (P) Ltd. v. CCE 1992 (58) ELT 561 (SC) and Indian Aluminium Cables Ltd. v. CCCE, New Delhi reported in 1997 (95) ELT 386 (T) held that, the assessments made pending approval of pricelist/clarification list were deemed to be provisional though the procedure under Rule 9B was not followed.
6. The revenue's appeal opposes the above proposition by saying that neither the procedure under Rule 9 B was followed nor the payments were provisional. It is further claimed that there was no express order of provisional assessment.
7. I have carefully examined the various case laws cited by the Commissioner (Appeals) and also the submissions contained in the grounds of appeal.
8. It seems to me that a vital aspect of the provisions contained in Rule 9B applicable in the facts at this case has been lost sight off, which is the provisions contained in the first proviso. It is stipulated therein that:-
"Provided that all clearances in respect of excisable goods covered under such request by the assessee submitted with the proper officer under the dated acknowledgement shall be deemed to be cleared as provisionally assessed to duty at such rate or at such value as declared by the assessee, till the date when the direction of the proper officer is issued and communicated to the assessee".
9. Admittedly in this case no directions were issued to the respondents in terms of powers vested in the proper officer, after receipt of application for provisional assessment. Therefore, the payment of duty in such circumstances are recognised by the said provisions, as being deemed to be provisional. Since such payment is deemed to be provisional under Rule 9B itself, it is not open for anyone the say that the assessment was not provisional under Rule 9B. Therefore on this fact alone the revenue appeal deserves to be rejected.
10. Besides, the judgment of the larger bench (6 Members) of the Cegat, in the case of Rajeev Mardia v. Commissioner of Central Excise, wherein it has been held that payments made pending finalisation of price/classification list are to be treated and provisional, even though, procedure contemplated in Rule 9B is not followed, also supports the case of the respondents, that the duty payment pending finalisation of price list was provisional.
11. In the light of above discussions, the revenue appeal is rejected.
11.1 E/3830/01-Mum. The revenue's appeal being identical as above, this appeal is also rejected on the basis of discussions above.
(Pronounced in Court on 23.2.2004)