Collector of Central Excise Vs. Studio Ritam

1. In the instant case, the Asstt. Collector of Central Excise, by his Order dated 31-3-1992, intimated the Appellants on the question of approval of their classification lists that "It is observed that your SSI Registration with the said Development Commissioner is provisional one. For availing the exemption benefits under Notification No. 175/86, dated 1-3-1986, it is essential that the factory should be permanently registered with the Directorate of Industries of the State. However, as you have stated in your letter dated 5-12-1991 that you are making all efforts to obtain a permanent SSI registration, I order that the assessment of the duty be made provisional under Rule 9B of Central Excises and Salt Act, 1944 till you produce proof of your permenent SSI registration with the Directorate of Industries." The Appellants filed an appeal against this order. The Commissioner (Appeals) in his Order held that: 'The Trade Notice No. 26/87, dated 28-4-1987 does provide that provisional Registration from the State Government should be accepted for availing the duty concession and it apears that this aspect has not been considered by the Asstt. Commissioner. The Appellant's contention that the Bombay High Court has held that trade notices published in favour of the assessees are binding on the Department is seen to be correct. No other reason having been furnished by the Asstt. Collector for denial of the benefit of the notification, I set aside his Order and allow the Appeal with consequential relief if any to the appellant.' Being aggrieved by this Order, Revenue has filed the captioned Appeal.

2. Arguing the Appeal, Shri Satnam Singh, the ld. SDR submits that the Asst. Commissioner had rightly interpreted the Notification No. 175/86 and had correctly asked the Respondents herein to have provisional Assessment; that the decision of the Asstt. Collector is not covered by Section 35 of the Central Excises & Salt Act, 1944 as it was not a final decision and was subject to modification after submission of the permanent SSI Registration Certification; that provisional assessment requires execution of a Bond and furnishing of security; that the Order-in-Appeal passed by the ld. Commissioner (Appeal) waives this condition inasmuch consequential relief has been granted; that Section 12E(2) of the Central Excise Act, 1944 puts an embargo on the Collector (Appeals) to exercise such powers; that the ld. Commissioner (Appeals) did not take all the facts into consideration. The ld. SDR, therefore, prayed that the Appeal may be allowed.

3. None appeared for the Respondents. However, since the issue is a simple one, the case was taken up for final decision.

4. Heard the submissions of the ld. SDR. Perused the evidence and grounds of appeal. We find that the Order of the Asstt. Commissioner conveyed in his letter dated 31-3-1992 was an order for provisional assessment. We find that this was not the final order but was subject to issue of the final order after submission of the permanent SSI Registration Certificate by the Assessee claiming the benefit of Notification No. 175/86. Thus this order was not an appealable Order.

In the circumstances, we hold that the Order of the ld. Commissioner (Appeals) is not a valid order and suffers from legal infirmity. In view of this finding, the Order of the ld. Commissioner (Appeals) is set aside and the Appeal is allowed.