COMMISSIONER OF CENTRAL EXCISE Vs. TAN INDIA LTD.

JUDGEMENT

(1.) THE Department's application to change the appellant's name (Commissioner of Central Excise, Coimbatore) as Commissioner of Central Excise, Salem is allowed and accordingly the cause title of the Memorandum, of Appeal will stand amended.

(2.) THE respondents, who were engaged in the manufacture of cement, had cleared certain quantities of cement during Oct.'87 and Mar.'88 availing the concessional rate of duty under Notification No. 124/87 -CE dated 29.04.1987 (as amended). The benefit of Notification was available to a cement manufacturer for a given calendar month only if his production in the preceding month exceeded 2.5% of the annual licensed capacity of the factory. The Department found that the respondents had not produced such quantity of cement as prescribed under the Notification, during Sept.'87 and Feb.'88 (preceding months). Accordingly, they issued two show -cause notices dated 13.03.1991 to the assessee demanding the differential amounts of duty for the months of Oct.'87 and Mar.'88. The demand was resisted by the noticee. The original authority confirmed the demand of duty against the assessee, by invoking the extended period of limitation under the proviso to Section 11A(1) of the Central Excise Act. Its decision was reversed by the first appellate authority, which held that the assessments of RT -12 Returns for the periods of dispute were not provisional and that the demand notices dated 13.09.1991 were time -barred. Hence the present appeal of the Department. 2. Ld. SDR reiterates the grounds of this appeal and submits that the relevant RT -12 Returns had been provisionally assessed and that the assessments were finalized in due course of time. It is further claimed that the show -cause notices were issued within 6 months from the date of final assessment and therefore, there is no question of limitation. Ld. SDR has placed on record a bunch of RT -12 Returns and classification lists pertaining to the period of dispute. These papers would indicate that the returns were "provisionally assessed" and the classification lists were "provisionally approved". Ld. SDR has also claimed support from the Supreme Court's judgment in Samrat International (P) Ltd v. Collector of Central Excise , wherein, on the facts of that case, it had been held that the assessments made without requiring B -13 Bonds to be filed by the assessee, were provisional as there was sufficient balance in the PLA.

(3.) LD . Counsel, on the other hand, submits that the case of Samrat International (supra) was distinguished by the Supreme Court in the case of Metal Forgings v. Union of India and that, according to the court's ruling, a specific order was required to be issued by the proper officer of Central Excise under Rule 9 B of the Central Excise Rules, 1944 for provisional assessment. It is argued that an assessment without such an order cannot be 'provisional' for the purpose of Rule 9B. In the present case, therefore, there was no provisional assessment and it would follow that the assessments in question were final. In the circumstances, the demand notices issued in Sept.'91 were time -barred.