SIDDHARTHA TUBES LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE appellant is a manufacturer of pipes and tubes which are liable to central excise duty on ad valorem basis. The appellant sent a letter dated 3 -11 -1997 to jurisdictional Central Excise authority seeking provisional assessment (under Rule 9B of Central Excise Rules, 1944) on the basis of the price list appended with that letter. On 13 -11 -1997, they were informed that prices were not in the prescribed format. They were, therefore required to file the price declaration as given in the Trade Notice No. 25/94 -CE so as to enable the Excise authorities to take further necessary action on the request made for provisional assessment. The appellant complied with the request. Subsequently, show cause notice dated 24 -12 -97 was issued stating that their request for provisional assessment was liable to be rejected. They were also asked to show cause why duty of about Rs. 8 lakhs should not be recovered in respect of the goods cleared during November, 1997. Penalty was also proposed under Rule 173Q etc. of Central Excise Rules. Two more show cause notices were issued in 1998 making the same proposal. Thus, the notice proposed recovery of a total duty demand of about Rs. 1.4 crores and imposition of penalties. After considering the appellant's defence, the Assistant Commissioner, Ujjain confirmed the duty demand under his adjudication order dated 29 -1 -1999 and imposed penalty.

(2.) THE appellant filed an appeal against that order before the Commissioner (Appeals), Central Excise, Commissioner (Appeals) rejected that appeal. The present appeal is directed against that order of the Commissioner (Appeals).

(3.) THE contention of the learned counsel for the appellant is that in terms of proviso to Rule 9B, assessment subsequent to the filing of price list under letter dated 3 -11 -1997 was provisional and that short levy demand under Section 11A and penalties under various Sections and Rules do not arise when the assessments are provisional. During the hearing of the case, learned Counsel has taken us through several decisions of this Tribunal and the Hon'ble Supreme Court to show that provisions in the statute relating to recovery of short -levy of duties and imposition of penalty are not applicable to provisional assessment. We may read the relevant proviso to Rule 9B :