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Collector of Central Excise, Madras v/s India Tyre and Rubber Company Limited

    R.C. No. 5 of 1985, dated 28-1-1997
    Decided On, 28 January 1997
    At, High Court of Judicature at Madras
    K. Jayachanan, Advocate.

Judgment Text

The above reference has been made under Section 35G of the Central Excises and Salt Act, 1944 at the instance of the Collector of Central Excise, Madras-34 by referring the following question for our determination and opinion.

"When a provisional assessment is made under Rule 9B of the Central Excise Rules, 1944 on any of the permissible grounds allowed thereunder, is it lawful to hold that the assessment as a whole is provisional so as to save a claim for refund on a different ground from the operation of time bar, or whether the provisionality is restricted to the only ground(s) on the basis of which provisional assessment was initially resorted to.

2.The necessity for the reference arose on account of the view taken by the Tribunal in Appeal No. ED(MAS) 403 of 1983, dated 10-8-1984 that the time limit for purposes of limitation under Rule 173-J of the Central Excise Rules, 1944 starts from the date of finalisation of the assessment by the Department in view of the fact that though the assessment was made provisional on a different footing from an assessment against which a protest had been made, the particular issue covered by it, an assessment that is provisional will have to be treated provisional in its entirety subject to finalisation on the basis of claims and counter claims of the Department and of the assessee.

3.Heard Mr. K. Jayachandran, learned Additional Central Government Standing Counsel for the applicant. The respondent has not entered appearance through any counsel to have their say in the matter.

4.We find that the issue that has been referred to for our consideration is no longerres integraand the matter is covered by more than one decision of the Apex Court and the larger Bench of the Tribunal constituted under the Act. In the light of the judgment of the Apex Court reported inSamrat International (P) Ltd. v.Collector of Central Excise-1992 (S1) SCC 293, 1993 (24) ATC 355, 1991 AIR(SC) 369, 1990 CrLR(SC) 667, 1991 (33) ECR 19, 1992 (58) ELT 561, 1993 LIC 38, 1993 (1) SLJ 96, 1993 (1) SLR 118, 1990 (2) Scale 747, 1990 (S2) SCR 1, 1993 (1) UJ 326, 1990 CRLR 667, 1993 SCC(L&S) 580, 1991 (31) ECC 207 and the subsequent decision 1991 (55) ELT 592 which came to be rendered by the Larger Bench of the Tribunal under the Act after considering not only the decision of the Apex Court noticed supra, but also s

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everal other judgments, We have to answer the question referred to us in the negative and hold that the provisional assessment made should for all purposes to be treated as provisional and not necessarily provisional in respect of the particular ground considered No costs.