BHANSALI ENGG. POLYMERS Vs. COLLECTOR OF CENTRAL EXCISE

JUDGEMENT

(1.) THE above application has been filed for rectification of mistake stated to be apparent on the face of the record in Tribunal's Tinal Order No. A/823 -828/99 -NB dated 7 -7 -1999 by which the Tribunal has upheld the duty demand on ABS waste generated during the course of manufacture of ABS polymers on the ground that waste was reprocessed to manufacture granules which were exempt from the whole of the duty of excise in terms of Notification 111/95 and hence ABS waste did not satisfy the condition of Notification 67/95 which is available to specified inputs manufactured in a factory and used within the factory of production in or in relation to the manufacture of specified final products; provided that those final products are not exempt from the whole of duty of excise or are not chargeable to nil rate of duty. The assessee's plea that the duty demand on ABS waste was bad in law as no show cause notice raising demand of duty on ABS waste was issued, was rejected by the Tribunal on the ground that during the entire period in dispute, assessment of ABS waste was provisional in terms of Rule 9B of the Central Excise Rules and hence the Assistant Collector was empowered to determine duty liability of the assessees on finalisation and assessments had been finalised vide adjudication order which was the subject matter of the impugned order.

(2.) ACCORDING to the applicants, the error arises in treating the assessments during the period as provisional in view of the fact that provisional as - sessment order for ABS waste is dated 10 -4 -1996 while duty on waste has been confirmed for the period from September 1995 to March 1996 which is prior to the date of the provisional assessment order. The applicants submit that an order of provisional assessment can only operate prospectively and cannot have retrospective effect, and, therefore, the show cause notice raising duty demand on ABS waste was required to be issued before confirming such demand and since admittedly no such notice was issued (six show cause notices which form the subject matter of this case all relate to demand on reprocessed granules), the demand cannot be sustained and requires to be set aside.

(3.) LEARNED DR reiterates the findings of the authorities below and supports the finding in the Tribunal's Final Order. He, however, fairly states that the submission that provisional assessment order cannot have retrospective effect is correct in law.