KANISHKA PACKAGING Vs. CCE

JUDGEMENT

(1.) BRIEFLY stated the facts of this case are as follows: The appellants herein are engaged in the manufacture of HDPE/PP bags in the classification list effective from 1.3.1992 to 31.3.1992 and effective from 1.4.1992 to 31.10.1992. The appellants had classified the aforesaid product under Chapter 63 of CETA 1985. These classification lists were earlier approved provisionally under Rule 9B and goods were assessed to duty under Rule (sic) 63. In that order dated 1.9.1992 the Assistant Collector had also directed the appellants herein to execute the B 13 Bond on the 25% security for binding themselves for payment of difference between the amount of duty as provisionally assessed and finally assessed. Later on, on receipt of certain directions of the CBEC, the classification list was approved finally under Chapter 39 of the Central Excise Tariff Act, 1985. Consequent upon the final approval of the classification list on 26.2.1993, RT 12 assessments were also made for the period March, 1992 to October, 1992 by taking into consideration the final classification under sub -heading No. 3923.90 and giving the benefit of notification No (sic). The final assessment resulted in short levy of Central Excise dues. Therefore, the appellants were directed to show cause (sic) Collector as to why Central Excise duty amounting to Rs. 2/(sic) covered from them under Section 11A of the Central Excise (sic) On adjudication the aforesaid amount of duty was confirmation (sic) show cause notice was issued on 17.3.1993. On appeal the (sic) not succeed. The appeal was dismissed for non -comp(sic) passed by the Lower Appellate Authority directing -(sic) duty amount adjudged by the Assistant Collector. Hence this appeal before the Tribunal.

(2.) LD . advocate Shri J.S. Agarwal for the appellants submits that the demand by show cause notice dated 17.3.1993 for the period March, 1992 to October, 1992 is mostly barred by time inasmuch as there was no provisional assessment. He submits that the assessment should not be considered to be provisional because the appellants herein never executed the B 13 bond as required under Rule 9B of the Central Excise Rules, 1944 despite the direction dated 26.2.1993 in the order of provisional approval as mentioned above. Ld. advocate however, submits that there is no reference of provisional assessment even in the show cause notice dated 17.3.1993. He therefore, submits that the demand for the period beyond six months from the date of receiving the show cause notice should be treated as barred by time and only the remaining amount is required to be paid by the appellants.

(3.) OPPOSING the contention ld. JDR Shri Udhoji however submits assessments were provisional in view of the Assistant Collector's order dated 1.9.1992. Therefore, the order dated 16.10.1993 confirming the demand of duty vide show cause notice dated 17.3.1993 has been validly passed inasmuch as there was provisional assessment. Consequently, the impugned order passed by the lower appellate authority is correct in law. We have carefully considered the pleas advanced from both the sides. We observe as pointed out by the ld. advocate that the lower appellate authority vide his order -in -appeal dated 106/CE/Appl/Indore/94 dated 11.2.1994 has set aside the order -in -original dated 26.2.1993 passed by the Assistant Collector Central Excise whereby the classification was finalised under Chapter 39. It is only pursuant to that order dated 26.2.1993 that the order dated 6.10.1993 demanding duty of Rs. 2,51,541.86, was passed. Once the order dated 26.2.1993 gets set aside by the order in appeal dated 11.2.1994, the subsequent order dated 6.10.1993 arising out of the show cause notice dated 17.3.1993 issued in pursuant to order of finalisation of classification dated 26.2.1993 will automatically get set aside. Consequently further argument before us is of no avail in view of the order -in -appeal dated 11.2.1994. In fact on receipt of order -in -appeal dated 11.2.1994, the Assistant Collector should have taken the steps to approve the classification list finally in de novo proceedings and then proceed to recover the demand of duty, if any. Having not done so, the impugned order cannot be sustained at this stage. Consequently, we set aside the impugned order and allow the appeal by remand directing the concerned Assistant Collector Central Excise to approve the classification list finally in the first instance and then, if the law so permits, recover the demand of duty, if any.