Custom, Excise & Service Tax Tribunal
M/S Thermax Ltd vs Commissioner Of Central Excise, Pune-I on 19 June, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. I Appeal No. E/248/11 (Arising out of Order-in-Appeal No. PI/RKS/237/2010 dated 18-11-2010 passed by the Commissioner of Central Excise (Appeals), Pune-I). For approval and signature: Honble Shri P.R. Chandrasekharan, Member (Technical) Honble Shri Anil Choudhary, Member (Judicial) ======================================================
1. Whether Press Reporters may be allowed to see : No 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 : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair copy : Seen of the order? 4. Whether order is to be circulated to the Departmental : Yes authorities? ====================================================== M/s Thermax Ltd. Appellant Vs. Commissioner of Central Excise, Pune-I Respondent Appearance: Shri V. Sridharan, Sr. Advocate with Shri Narendra Dave, C.A. for Appellant Shri Shobha Ram, Commissioner (AR) for Respondent CORAM: SHRI P.R. CHANDRASEKHARAN, MEMBER (TECHNICAL) SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) Date of Hearing: 19.06.2014 Date of Decision: .2014 ORDER NO. Per: P.R. Chandrasekharan
The appeal arises from Order-in-appeal No. PI/RKS/237/2010 dated 18-11-2010 passed by the Commissioner of Central Excise (Appeals), Pune I commissionerate. Vide the impugned order, the ld. Lower Appellate authority has upheld the confirmation of excise duty demand of Rs.5,30,86,840/- by classifying the Modified Vapour Absorption Chillers (MVAC in short) manufactured by the appellant, M/s Thermax Limited, Pune, under CETH 8418.10 and finalizing the provisional assessment of the goods during the period from June 91 to March 99 under Rule 9B of the Central Excise Rules, 1944, by the Deputy Commissioner of Central Excise under order-in-original dated 31-12-2009. Aggrieved of the same, the appellant is before us.
2. Brief facts relating to the case are as follows: -
The appellant has been manufacturing, inter alia, MVAC, since 1990. The appellant sought to classify the said product under CETH 8418 as heat pump other than air-conditioning machines and claimed the benefit under notification 155/86-CE dated 1-3-1986 and duty liability was discharged accordingly during 1991-92 and 92-93. The assessments were kept provisional. A show cause notice was issued on 10-3-98 seeking to classify the product as part of air-conditioning and refrigeration machine and proposing to deny the benefit of concessional rate of 15% adv. claimed by the appellant and demanding duty @ 40% adv. Vide order dated 21-8-98, the jurisdictional Asst. Commissioner classified the product under CETH 8418.90 as parts of air-conditioning and refrigeration machine and sought to finalize the assessment by excluding the cost of lithium bromide and other accessories supplied along with MVAC. The said order was challenged by the appellant before the lower appellate authority. The Commissioner on review of the order of the adjudicating authority also filed an appeal before the lower appellate authority. The lower appellate authority vide order dated 30-9-1999 set aside the classification ordered by the adjudicating authority and allowed the benefit of notification 155/86-CE and also rejected the appeal filed by the Commissioner. In respect of the subsequent period, the Asst. Commissioner again followed his earlier order which on appeal was allowed by the lower appellate authority vide order dated 14-2-2000. Revenue filed appeals against both the orders of the lower appellate authority before this Tribunal. This Tribunal vide order dated 22-1-2009 held that the product in question is not a heat pump as claimed by the appellant and therefore, not eligible for the benefit of notification 155/86. The tribunal further held that the product is a complete machine in itself and not part of a machine. Since the demands were raised on the basis of rates applicable to parts of refrigeration machine, the Tribunal remanded the matter to re-calculate the duty as per the rates applicable to refrigeration machine and also to examine whether the price realized by the appellants were cum-duty price or not. As regards the inclusion of the cost of lithium bromide and other accessories, the Tribunal held that the cost of these items is not includible in the assessable value of the refrigeration machine. In pursuance to the remand proceedings directed by this Tribunal, the jurisdictional Dy. Commissioner re-assessed the goods by treating the price received as cum-duty and classifying the products under CETH 8418.10 as air-conditioning/refrigeration machine. While re-assessing the goods, the assessing authority adopted a rate of duty of 60% adv. (as against the rate proposed of 40% adv. for the periods 91-92 and 92-93) and confirming a differential duty demand of Rs.5,30,86,840/- The order of the Tribunal has been challenged by the appellant before the honble Apex Court and the appeal is said to be pending. However, no stay has been granted against the Tribunals order. It is this order affirmed by the lower appellate authority which is under challenge now. Before proceeding with the appeal, the Bench asked the appellant whether it has any objection since the appeal passed by the Tribunal is under challenge before the Apex Court. Both the appellant and the Revenue not only did not raise any objection but also agreed that the appeal be considered by the Tribunal.
3. The contentions of the ld. Counsel for the appellant can be summarized as follows:-
(1) The case of the department in the show cause notices issued earlier and the order-in-original passed was the product in question was part of air-conditioning and refrigeration machine and the differential demand was confirmed on this ground. Since the Tribunal has held that the product in question is not part but a complete machine in itself, the confirmation of duty demand now as per the directions of the Tribunal is not sustainable as it is at variance with the proposal in the show cause notice.
(2) Reliance is placed on the decision of the apex court in the case of Hindustan Polymers [1999 (106) ELT 12 (SC)] wherein it was held that the Tribunals order proceeding on a basis altogether different from the show cause notice is not moulding relief but making a new case which is not permissible and the appropriate course would have been to set aside the demand and leave it open to the Revenue to proceed against the appellants as permissible under law. Reliance is also placed on the decision in the case of Warner Hindustan Ltd. [1999 (113) ELT 24 (SC)] wherein a classification dispute arose regarding a product called Halls Ice Mint Tablets. In the said case the assessee sought classification under CETH 3003.30 as ayurvedic medicines while the department classified the product under CETH 3003.19 as patent or proprietory medicines. In appeal the Tribunal held the classification to be CETH 17.04 as confectionery. In appeal, the honble Apex Court held that it is impermissible for the Tribunal to consider a case that is laid for the first time in appeal and allowed the appeal while holding that it shall be open to the excise authorities to issue show cause notice proposing classification under CETH 1704.
(3) In the present case, the Tribunal has held that the product is classifiable as a complete air-conditioning and refrigeration machine and no opportunity was given to the appellant to prove their case that it is otherwise. Therefore, the revenue ought to have issued a show cause notice to the appellants seeking classification as a complete air-conditioning and refrigeration machine. Having failed to do that the impugned demand is not sustainable in law as it traverses beyond the scope of the show cause notice. Reliance is also placed on the decision in the case of Toyo Engineering India Ltd. [2006 (201) ELT 513 (SC)] (4) In any event, the demand for the periods 91-92 and 92-93 in excess of 40% Basic excise duty is without a show cause notice issued under section 11A and hence the demand is bad in law. A constitutional bench of the apex court in the case of Mafatlal Industries Ltd. [1997 (89) ELT 247 (SC)] had held that any recoveries or refunds consequent upon the adjustment under sub-rule (5) of Rule 9B will not be governed by section 11A or section 11B, as the case may be. However, if the final orders passed under sub-rule (5) are appealed against then any refund claim arising as a consequence of the decision in such appeal would be governed by section 11B. It was also made clear that if an independent refund claim is filed after the final decision under rule 9B(5) re-agitating the issues already decided under rule 9B, it would obviously governed by section 11B and the position would be the same in the converse situation. Therefore if final orders passed under rule 9B(5) are appealed against then any demand arising as a consequence of the decision in such appeal would be governed by section 11A. In the present case, the appellants had challenged the order dated 21-8-98 finalising the provisional assessment under rule 9B(5) and at the second appeal stage the Tribunal held that the appellants product is classifiable as a complete air-conditioning and refrigerating machine attracting a duty rate of 60% adv. Therefore, the demand of additional duty @ 20% (60% as held by Tribunal 40% as held by Asst. Commissioner) has arisen on account of appeal filed against the final assessment order. Therefore, in view of the decision of the apex court in the Mafatlal Industries case cited supra, provisions of section 11A are applicable and since no notice has been issued to the appellant under section 11A, the impugned demands are not sustainable. Further, the ratio of the decisions of the apex court in the case of Hindustan Polymers and Warner Hindustan is squarely applicable.
(5) The Deputy Commissioner is not empowered to confirm the demand @ 60% adv. in respect of periods 91-92 and 92-93 on the ground that he has merely followed the Tribunal order dated 22-1-2009. The Dy. Commissioner is required to confirm the demand following CESTATs order in accordance with law and in law, the Dy. Commissioner cannot confirm the demand beyond 40% adv. in respect of the periods 91-92 and 92-93. In the present case the show cause notice dated 10-3-98 was issued under section 11A before finalization of provisional assessment and therefore, the said notice is bad in law.
(6) In any case, the Tribunal does not have power to enhance the duty demand confirmed on the assessee. Reliance is placed on the decisions in the case of Pathikonda Balasubba Setty [ (1967) 65 ITR 252 (Mys)] and Hukumchand Mills Ltd. vs. CIT [(1967) 63 ITR 232 (SC)] wherein it was held that the power of the Tribunal to pass such orders as it thinks fit include all powers (except possibly the power of enhancement).
In the light of the above submissions, it is prayed that the impugned orders be set aside and the appeal allowed.
4. The ld. Commissioner (AR) appearing for the Revenue strongly refutes the contentions raised on behalf of the appellant and submits as follows:-
(a) It is a settled law that a provisional assessment retains its provisional character for every purpose as held by the honble Madras High Court in Indian Oil Corporation Ltd. case [2002 (14) ELT 334 (Mad)] and by the Tribunal in the case of Orient Pre-stressed Products (P) Ltd. [2003 (159) ELT 1181 (tri.-Del)]. If the assessment is provisional for purpose of valuation and classification, it is also provisional for other aspects of assessment such as rate of duty, exemption notification, quantification of duty, etc. In L.M. Glassfiber (India) Pvt. Ltd.[2009 (235) ELT 146], it was held by this Tribunal that classification of goods is as much a part of assessment as valuation and it was open to the assessing officer to classify the goods correctly while finalizing the assessment even though it was made provisional on account of valuation. Similarly in the case of Denso Haryana P. Ltd. [2004 (176) ELT 548] it was held by the Tribunal that if the assessment was made provisional on account of valuation dispute, the assessee could challenge the classification and can seek reclassification of the goods at the time of finalization of assessment, as provisional assessment remain provisional for all purposes.
(b) No show cause notice is required to be issued under section 11A for recovery of duty arising on finalization of assessment. In the Mafatlal Industries case relied upon by the appellant, the apex court had clearly held that any recoveries or refunds consequent upon the adjustment under sub-rule (5) of rule 9B will not be governed by section 11A or section 11B. Thus there is no requirement to issue a show cause notice under section 11A for recovery of duty payable upon finalization of assessment on account of change in classification or rate of duty or valuation for finalization of provisional assessment. The said view was affirmed by the honble apex court in the case of ITC Ltd. [2006 (203) ELT 532 (SC)] wherein after examining the provisions relating to relevant date under section 11A, it was held that show cause notices issued under section 11A were illegal when provisional assessment was pending. While passing the said order, the honble apex court followed its precedent decision in the case of Serai Kella Glass Works Pvt. Ltd. [1997 (91) ELT 497] wherein it was held that proceedings under section 11A would commence within six months from the relevant date and relevant date in respect of provisional assessment is the date when adjustment of duty is made after finalization of assessment is made. Therefore, there is no question of issuing a notice under section 11A when the assessments are provisional and when the assessment is sought to be finalized. The same ratio was followed by this Tribunal in the case of Indian Oil Corporation Ltd. [2010 (251) ELT 541] wherein it was held that provision of section 11A relating to recovery of short levy or penalty does not apply to provisional assessment.
(c ) The show cause notice dated 10-3-1998 has been issued under Rule 9B for finalization of provisional assessment and not under section 11A for recovery of any short levy or non-levy. Para 52 of the said notice clearly invokes the powers under Rule 9B of the Central Excise Rules, 1944 for finalization of the provisional assessment. In the assessment order issued in pursuance to the said notice also, it is clearly stated that the assessment is being finalized in terms of the said order. In view of the factual position as evident from the records, the appellants contention that show cause notice has been issued earlier under section 11A is factually incorrect.
(d) The amount of demand confirmed is not more than the amount demanded in the show cause notice. Since the assessment was provisional, the rate of duty, classification and valuation etc. could be modified at the time of finalization of assessment. The apex Courts decision in the case of Mafatlal Industries case (supra) also refers to the amount of duty finally assessed vis-`-vis the amount of duty provisionally assessed and does not make any reference to the change in the rate of duty at the time of final assessment. Therefore, there is infirmity in the assessment order5 as the enhancement of rate of duty has not resulted in confirming any amount more than that proposed to be demanded in the show cause notice.
(e) The case laws relied upon by the appellant in the case of Hindustan Polymers and Warner Hindustan are distinguishable on facts and have no application to the present case. In none of the above cases, the issue considered therein related to recovery of duty on finalization of provisional assessment. Therefore, these decisions are distinguishable on facts and hence the ratio laid down therein cannot be applied to the present case. Reliance is placed on the decision of the Tribunal in the case of IJM Gayatri Joint Venture [2008 (231) ELT 683] in support of this contention.
In the light of the above submissions, the ld. AR prays for upholding the impugned orders and rejection of appeals.
5. We have carefully considered the submissions made by both the sides. Our findings and conclusions are detailed in the ensuing paragraphs.
5.1 It would be necessary and useful at this juncture what was the decision of this Tribunal in the earlier round of litigation when the matter was considered. The relevant extracts from the order No. A/35 to 37/09/EB/C II dated 22-01-2009 so far as it is relevant to the present appeal is reproduced verbatim below:-
19. From the available records, it is seen that before clearance MVACs were tested for their performance only in cooling mode. The customers who bought the MVACs from the assessee also used the same in cooling mode in the refrigeration/air-conditioning machinery. We are, therefore, clear in our mind that the MVACs manufactured and cleared by the assessee cannot be called as heat pumps in the facts and circumstances of the case.
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25. We have already held herein before in para 19 that MVACs manufactured and cleared by the assessee cannot be called as heat pumps in the facts and circumstances of this case. Hence the benefit of the notifications applicable to heat pumps during the relevant period will not be available to the assessee.
26. We have now to see whether these MVACs can be treated as parts or components of refrigeration/air-conditioning machinery as claimed by the revenue or otherwise. We find that in a somewhat similar situation in the case of Air-con Ltd. [2001 (128) ELT 485], this Tribunal was dealing with the classification of chillers whether under heading 84.18 as claimed by the assessee or under heading 84.15 as parts of air-conditioning system as contended by the Revenue. The Tribunal held that end use of chillers in the air-conditioning system would not take away the primary or basic function of the chillers which is to produce chilled water by using a refrigeration circuit and the same shall fall under chapter heading 84.18 of the Central Excise Tariff Act. This decision of the tribunal has been upheld by the honble Apex Court as reported in 2006 (199) ELT 577 (SC). The honble apex court found that the main function of the air-conditioning system is to control temperature, which is not done by a chiller. The function of the chiller is only to chill water or bring it to a very low temperature, and it is the air-handling unit having an independent and distinct function which produces the effect of air-conditioning, controlling the temperature and humidity. The honble apex court also found the chillers manufactured by the respondent are cleared as separate elements and not as air-conditioning machines, therefore, the same have to be classified under Chapter heading 84.18 as refrigerating or freezing equipment as the basic function of the chiller is to chill the water or liquid. Further chillers in the domestic and international trade parlance are known as refrigerating equipment. Hence the chillers would not be classifiable under chapter heading 85.15.
27. Respectfully following the ratio of the above decision of the apex court, we hold that MVAC is classifiable under sub-heading 8418.10 of the Central Excise Tariff as refrigerating equipment and not as parts of refrigeration/air-conditioning machinery under sub-heading 8418.90.
28. Since the duty has been calculated as applicable to parts, as a result of our decision, it will now be necessary to re-calculate the duty demand as per rates applicable to refrigerating equipment prevalent during the relevant period from June 1991 to September 1997 and from 1/4/98 to 31/3/99. For this limited purpose, we remand the matter to the jurisdictional Asst. Commissioner/Deputy Commissioner of Central Excise and set aside the Order-in-appeal No. PII/NK-105/99 dated 30/9/99 and Order-in-appeal No. PI/NK-94/2000 dtd. 14/2/2000. The jurisidictional Asst. Commissioner /Dy. Commissioner of Central Excise shall re-calculate the duty demands after affording adequate opportunity to the assessee of being heard.
29. Appeal No. E/1482/2000 and Appeal No. E/1731/2000 are thus allowed by way of remand in the above terms..
5.2 From the order of the Tribunal, especially from the portions highlighted, it is absolutely clear that the order was remanded only for the limited purpose of re-calculating the demand for the period June 1991 to September, 1997 and from 1-4-98 to 31-3-1999, by classifying the product MVAC manufactured by the appellant under CETH 8418.10 as refrigerating equipment. The said order did not grant any liberty whatsoever to the assessing authority to re-open the issue of classification. Therefore, the appellants contention that show cause notice should have been issued for the proposed classification and the appellant should have been heard once again is clearly unsustainable and has to be rejected outright.
5.3 It is true that the appellant has challenged the above order of this Tribunal before the honble Apex Court which is said to have been admitted and pending. However, the appellant has not been able to obtain any stay against the said order. Thus the classification, as laid down by the Tribunal in the said order dated 22-1-2009 shall prevail unless and until it is set aside by the honble Apex Court. Further in the said order, the Tribunal has considered the submissions made by the appellant in support of classification as a heat pump and its claim for benefit under notification 155/86. After considering all the relevant aspects, namely, the products functions and its usage, technical literature, HSN Explanatory Notes, various Tribunal and Apex Court decisions relevant to the classification the product, has recorded a detailed finding and has classified the product. Therefore, it cannot be the case that the appellant were never afforded an opportunity to canvass their views. In this factual position, we do not any merit in the appellants contention that they should have been given one more opportunity by the assessing officer as regards the proposed classification. In any case, the assessing officer was neither directed to give such an opportunity nor could he have come to a different view, in view of the decision this Tribunal with respect to classification which is binding on the lower authorities. The lower authorities have merely carried out the directions of this Tribunal to re-calculate the duty and in the absence of any challenge to such re-calculation by the appellant, the present appeal is liable to rejected and we hold accordingly.
5.4 Strong reliance has been placed by the appellant on the decisions of the honble apex court in the case of Hindustan Polymers and Warner Hindustan (supra) and it has been urged that the ratio of the said decisions should be applied to the facts of the present appeal. It is a settled position in law as held by the honble apex Court in Al Noori Tobacco Products India Ltd. case [2004 (170) ELT 175 (SC)] that the ratio of a decision can be applied only if the facts are identical. A slight or a material change in the facts could lead to an entirely different conclusion. In the said case, the honble apex court noted as follows:-
"There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case."
Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
The following words of Lord Denning in the matter of applying precedents have become locus classicus:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
In both the above cases relied upon by the appellant, the issue therein did not relate to finalization of a provisional assessment which was under challenge before the Tribunal. Further in those cases, the Tribunal also did not give any specific directions as to how the finalization of the provisional assessment should be done. Thus the facts involved in those cases are different and distinguishable. Therefore, following the ratio of the decision of the apex court in the Alnoori Tobacco case (supra), it has to be held that the ratio of the decisions in the Hindustan Polymer and Warner Hindustan case is not applicable.
5.5 As regards the reliance placed by the appellant in the Mafatlal Industries case, in para 95 of the said decision, the honble apex court had, inter alia, held as follows:-
95. ... Any recoveries or refunds consequent upon the adjustment under sub-rule (5) of Rule 9B will not be governed by Section 11A or Section 11B, as the case may be. However, if the final orders passed under sub-rule (5) are appealed against or questioned in a writ petition or suit, as the case may be, assuming that such writ or suit is entertained and is allowed/decreed-then any refund claim arising as a consequence of the decision in such appeal or such other proceedings as the case may be, would be governed by section 11B. It is also made clear that if an independent refund claim is filed after the final decision under Rule 9B(5) reagitating the issues already decided under rule 9B- assuming that such a refund claim lies- and is allowed, it would obviously be governed by section 11B. It follows logically that position would be the same in the converse situation. In the facts of the case before us, in the order dated 22-1-2009, this Tribunal set aside the final assessment done by the lower authorities and directed the assessing officer to undertake re-assessment as per the classification decided by the Tribunal and to re-compute the differential duty liability. Thus the remand order passed by the Tribunal restored the provisional assessment resorted to earlier by setting aside the final assessment order and it is in pursuance of the said remand order, the jurisdictional Dy. Commissioner passed the re-assessment order and confirmed the differential duty liability. This is clearly evident in paragraph 14 (ii) and (iii) of the order dated 31-12-2009 wherein it has been held as follows:-
ii) I confirm the classification of the MVAC under Chapter sub-heading 8418.10 of the Central Excise Tariff as a Refrigerating equipment and accordingly confirm the differential duty demand of Rs.5,30,86,840/- .
(iii) All the provisional assessment orders issued under erstwhile Rule 9B of the Central Excise Rules, 1944 are hereby finalized accordingly. Thus the assessing officer has finalized the provisional assessments vide the impugned order. Therefore, the differential duty demand was raised not after the finalization of the assessment but as a part of and in the process of finalization of assessment. Therefore, the Mafatlal Industries decision does not support the case of the appellant but on the contrary supports the case of Revenue.
5.6 The settled legal position that a show cause notice under section 11A of the Act cannot be issued during the pendency of assessment proceedings clearly emerges from the decision of the honble Apex Court in the case of ITC Limited (cited supra by Revenue) wherein it was held as follows:-
Completion of an assessment proceedings whether is a sine qua non for issuance of notice under Section 11A of the Central Excise Act, 1944 (for short The Act) is the question involved in this appeal which arises of a judgment and order dated 18.06.2004 as modified by an order dated 02.07.2004.
......17. Section 11A of the Act provides for a penal provision. Before a penalty can be levied, the procedures laid down therein must be complied with. For construction of a penal provision, it is trite, the golden rule of literal interpretation should be applied. The difficulty which may be faced by the Revenue is of no consequence. The power under Section 11A of the Act can be invoked only when a duty has not been levied or paid or has been short-levied or short-paid. Such a proceeding can be initiated within six months from the relevant date which in terms of sub-section (3)(ii)(b) of Section 11A of the Act (which is applicable in the instant case) in a case where duty of excise is provisionally assessed under the Act or the Rules made thereunder, the date of adjustment of duty after the final assessment thereof. A proceeding under Section 11A of the Act cannot, therefore, be initiated without completing the assessment proceedings. The honble Delhi High Court re-iterated the above view in the case of ITC Limited [2010 (250) ELT 189 and further held that, -
12.6
(i) .
(v) In our view, the process of assessment would involve not only the ascertainment of the basis on which the duty is to be calculated, but also the determination of the final amount. In our opinion, assessment is an integrated process. The assessee is as interested in knowing the basis; as he is in the determination of final liability, which he is mulcted with by the department. ..
(vii) . The reason being: the provisions of Section 11A get triggered only upon a final assessment of duty. It is so because, a bare reading of the provisions of Section 11A of the Act would show that the 'relevant date' for commencement of limitation begins from the date on which the excise duty, which is provisionally assessed, is adjusted against final assessment. This is quite clear if regard is had to the provisions of Section 11A(3)(ii)(b). 5.7 We also find merit in the argument advanced by the Revenue that a provisional assessment retains its provisional character for every purpose. In CCE vs. Indian Oil Corporation Ltd (supra), the honble Madras High Court had held that,-
2. The assessment is either provisional or final, and if it is provisional, it retains that character of being provisional for every purpose and cannot be treated as final in respect of a matter not considered. What is material is the ultimate character of the order of assessment whether it is provisional or final. The same was re-iterated by this Tribunal in the case of Orient Pre-stressed Products (P) Ltd. case and L.M.Glassfiber (India) P. Ltd. cases cited supra.
5.8 In view of the factual and legal position as discussed above, we do not find any merit in the contention of the appellant that a show cause notice should have been issued to the appellant under section 11A before the Dy. Commissioner finalized the provisional assessment.
5.9 We also take note of the factual position confirmed by Revenue that the amount of duty demand confirmed is much less than the amount specified in the show cause notice issued for finalization of provisional assessment. In the notice dated 1-3-98 which was issued for finalization of provisional assessment, the differential duty sought to be recovered was Rs.37.05 Crore approx. whereas in the final assessment order, the demand confirmed is only Rs.5,30,86,840/- which is much less than that proposed in the notice. Thus there is no infirmity in the assessment order passed by the Deputy Commissioner as the enhancement of rate of duty has not resulted in confirmation of any amount more than that proposed in the show cause notice.
6. In the light of the factual and legal analysis as discussed above, we do not find merit in this appeal and accordingly we dismiss the same.
(Operative part of the order pronounced in the Court on / /2014)
(Anil Choudhary) (P.R. Chandrasekharan)
Member (Judicial) Member (Technical)
Sinha
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