Milton Plastic Industries Vs. Commissioner of Central Excise - Court Judgment

Excerpt:
1. in support of this application for modification of the tribunal's stay order, the counsel for the applicant contends that the assessments were provisional. the applicant had made a request in its letter dated 16.2.1997 for provisional assessment, and by application of the first proviso under sub rule (1) of rule 9 b, the assessments are deemed to be provisional. there are various objections at this stage to accepting this contention. the first is that this was not even a ground that was argued before the tribunal. the counsel for the applicant agrees, without reservation, that this specific point was not raised. the stay application merely contends that the assessments were provisional without indicting the reasons. the tribunal has already dealt with this ground in its stay order. this alone should be enough to dispose of the application. it is settled law that stay application cannot be argued in piece meal (plus cosmetics (pvt) vs cce 2. apart from this there are other objections. it is difficult to treat this letter as a request for provisional assessment. it does not, in terms, seek provisional assessment. it merely intimates the superintendent that the assessee will clear the goods on payment of duty at the declared price, claiming that :"to that extent would be provisional under rule 9b." it said that the end of the three months differential duty shall be debited. if the assessments are provisional, they continue to be provisional till they are finalised. there will then be no question of debiting duty after three months. we have to distinguish between a proper request for provisional assessment, which would carry with it normally an offer to cash deposit or otherwise, and a mere declaration of the intent that the assessee at its convenience will pay duty. thirdly, the letter seems to have been given to the superintendent, who it appears to us is not the proper officer for ordering provisional assessment. the counsel for the applicant does not disputed this at this stage.3. the application is accordingly dismissed except to the extent of giving (sic) a month from to day to make the deposit.

Judgment:
1. In support of this application for modification of the Tribunal's stay order, the counsel for the applicant contends that the assessments were provisional. The applicant had made a request in its letter dated 16.2.1997 for provisional assessment, and by application of the first proviso under sub rule (1) of Rule 9 B, the assessments are deemed to be provisional. There are various objections at this stage to accepting this contention. The first is that this was not even a ground that was argued before the Tribunal. The counsel for the applicant agrees, without reservation, that this specific point was not raised. The stay application merely contends that the assessments were provisional without indicting the reasons. The Tribunal has already dealt with this ground in its stay order. This alone should be enough to dispose of the application. It is settled law that stay application cannot be argued in piece meal (Plus Cosmetics (Pvt) vs CCE 2. Apart from this there are other objections. It is difficult to treat this letter as a request for provisional assessment. It does not, in terms, seek provisional assessment. It merely intimates the Superintendent that the assessee will clear the goods on payment of duty at the declared price, claiming that :"to that extent would be provisional under Rule 9B." It said that the end of the three months differential duty shall be debited. If the assessments are provisional, they continue to be provisional till they are finalised. There will then be no question of debiting duty after three months. We have to distinguish between a proper request for provisional assessment, which would carry with it normally an offer to cash deposit or otherwise, and a mere declaration of the intent that the assessee at its convenience will pay duty. Thirdly, the letter seems to have been given to the Superintendent, who it appears to us is not the proper officer for ordering provisional assessment. The counsel for the applicant does not disputed this at this stage.

3. The application is accordingly dismissed except to the extent of giving (sic) a month from to day to make the deposit.