LIBERTY ENTERPRISES Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE issue involved in this appeal filed by M/s. Liberty Enterprises is whether the assessment is provisional.

(2.) SHRI R. Pal Singh, Ld. Consultant, submitted that the appellants manufacture footwear; that a show -cause -notice, dated 4 -3 -1999, was issued to them for demanding central excise duty amounting to Rs. 24,57,8697 - on footwear cleared during the period from November 1996 to August 1997 on the ground that they were ineligible for exemption if the expenses incurred from factory gate up to depot is added in the ex -factory price which has been shown as Rs. 75/ -; that duty amounting to Rs. 95,767'/ - was also demanded on the basis of M.R.P.; that the Commissioner Central Excise in the Impugned Order No. 19/99, dated 11 -10 -1999 dropped the demand of Rs. 95,767/ -; that the Commissioner, further, did not express any view on demand of Rs. 24,57,869/ - observing that the Assistant Commissioner, Sonipat, would take a view on the question of determination of the assessable value of footwear while finalising the provisional assessment. The Ld. Consultant, further, submitted that the assessment was not provisional during the period from November 1996 to August 1997; that the Assistant Commissioner, under his Order dated 14 -10 -1996 has ordered provisional assessment only in respect of price declaration dated 29 -2 -1996 filed by them; that they had also filed another price declaration on 19 -11 -1996 in respect of which no order for provisional assessment was passed by the Assistant Commissioner; that as such the Commissioner was wrong in predicating his order on the wrong premise that assessment during relevant period was provisional; that indeed the fact that the assessment is final, is implied in department's invoking of extended period of limitation in the show cause notice. The ld. Consultant specifically referred to para 7 of the reply dated 10 -7 -1999 to the show cause notice in which it was mentioned that the delay in issuing the show cause notice has been attempted to be overcome by treating the assessment provisional and also alleging suppression and mis -statement; that if assessment was provisional there is no question of invoking Section 11 A of the Central Excise Act as the question of raising of demand under Section 11 A would arise only after finalisation of provisional assessment.

(3.) COUNTERING the arguments, Shri P.K. Jain, Ld. SDR, submitted that once the Assistant Commissioner, under order dated 14 -10 -1996, has ordered provisional assessment all the subsequent assessment would be provisional; that the mere fact that a new price declaration has been filed by them in November '96 will not make any difference as the assessment are continuing to be provisional. He, further, mentioned that the order dated 14 -10 -1996 issued by the Assistant Commissioner speaks of all future assessment to be provisional.