CCE, MEERUT Vs. MANAKTALA CHEMICALS (P) LTD.

JUDGEMENT

(1.) IN the impugned order Ld. Collector held

(2.) ARGUING the case for Revenue Shri Mewa Singh, Ld. DR submits that the appellants are manufacturers of Organic Surface Active Products and preparations thereof; that they filed Classification Lists No. 78/90 -91 dt. 4.5.1990 and 14/91 w.e.f. 1.4.1991. In the Classification List effective from 25.7.1991 they claimed SSI benefit under Notification No. 175/86 as amended; that the assessments were done provisionally under Rule 9B of the Central Excise Rules, 1944 under the orders of Asstt. Collector during the pendency of approval of classification list; that an SCN was issued to the appellants on 23.1.1992 asking them to show cause as to why these classification lists should not be modified and approved finally after denying them the benefit of Notification No. 175/86 of their products. The Asstt. Collector in his Order -in -Original held that the appellant was not eligible to Super detergent cake 555 as the said trade mark was owned by M/s. Goramal Hari Ram Ltd. of Delhi who were not eligible for SSI exemption. The appellants filed an appeal against this order and the Ld. Collector in his Order -in Appeal held as indicated in the preceding paragraph. Ld. DR submitted that the Asstt. Collector in his order -in -original dt. 16.4.1992 has not finalised the provisional assessment as considered by the Collector of Central Excise, Ghaziabad in his order -in -appeal but only directed the party to calculate the differential duty payable on the clearances of '555' detergent cake effective from 1.4.1990. He contended that this showed that the Asstt. Collector had only ordered the appellant to get his provisional assessment finalised by way of calculating differential duty; that the Suptd. on the basis of the above order asked the appellant to follow the order of the Asstt. Collector for submitting calculation for differential duty; that letter of Supdt. nowhere speaks that the provisional assessment has been finalised. Ld. DR submitted that letter of Supdt. was not to order of the final assessment; that the ld. Commissioner (Appeals) was not justified in vacating the order of the Asst. Commissioner; that the Ld. Commissioner (Appeals) had agreed with the findings of the Ld. Asstt. Collector that the appellant was not entitled to SSI benefit. Ld. DR also argued that the order Nos. 151/93 dt. 26.2.1993 and 90/95 dt. 24.4.1995 were contradictory in -as -much as in the first order Ld. Commissioner has considered the demand as still regular and vacated the same. However, in his order dt. 24.4.1995 he has observed that the provisional assessment was finalised and the demand was made by the Asst. Commissioner on 16.4.1992. Ld. DR, therefore, submitted that SCN dt. 28.9.1993 is well within time of six months provided under the law.

(3.) SHRI K. Kumar, Ld. Counsel and Shri Manjit Singh, Ld. Consultant appeared for the respondent and submitted that the entire demand can be divided into three parts; that the first part consists of the period before the execution of the bond; that the 2nd period of demand is for the period when the assessments were provisional and that the third part of the demand was for the period when a fresh classification list was submitted and which was not approved. Ld. Counsel submitted that the classification list for the period 1991 -92 was not provisional and therefore, the demand for this period will be hit by limitation as the entire demand for this period, is beyond six months in -as -much as the classification list is for the period 1991 -92 whereas the SCN was issued on 28.9.1993. Ld. Counsel submitted that demand for the period August 1990 to March 1991 is for the period when the assessments were provisional and therefore, in his fairness Ld. Counsel submitted that the demand for this period is sustainable. He submitted that demand for the period from April 1990 to July 1990 is also time barred because during this period there was no provisional assessment. In support of his contention Ld. Counsel referred to the decision of the Hon'ble Supreme Court in the case of Coastal Gases & Chemicals Pvt. Ltd. v. Asst. Collector of Central Excise reported in : 1997 (92) ELT 460. In support of his contention that classification list filed by the assessee but not yet approved by the Asstt. Collector clearances made in the meantime are not provisional. Ld. Counsel also referred to the judgment of this Tribunal in the case of Universal Paper Mill v. Collector reported in : 1998 (97) ELT 349 : 1997 (70) ECR 294 (T). He submitted that in this case this Tribunal held that order to be given by proper officer for provisional assessment and B -13 Bond to be executed; that the Supreme Court judgment was on refund matter in Samrat International case reported in : 1992 (58) ELT 561 : 1991 (33) ECR 19 (SC) and therefore, it was not applicable to a situation entirely different in which on final assessment, demand of duty from the assessee is involved. Ld. Counsel also referred to the judgment of this Tribunal in the case of Alok Udyog Vanaspati and Plywood Ltd. v. Commissioner of Central Excise, Calcutta reported in, 1998 (25) RLT 59 and submitted that in this case this Tribunal held that the assessment of RT -12 Returns done provisionally without following the mandatory provision of Rule 9B or 173C, cannot be treated as provisional assessment. Ld. Counsel also submitted that this Tribunal in the case of Delta Panel Products Pvt. Ltd. v. Collector reported in : 1998 (62) ECC 829 held similar views as those expressed in the case of Alok Udyog Vanaspati.