Per J.H. Joglekar:

The appellants were manufacturing sugar. In pursuance of a scheme to offer rebate on additional production of sugar, they filed a classification list no. 17/87 wherein exemption was claimed from basic duty as also additional duty in terms of relevant notification no. 109/87-CE. The show cause notice issued on 27.1.88 alleged that the notification provided benefit in the nature of rebate of basic duty and not additional duty. The Asstt. Collector after hearing the assessees in his order dated 21.4.88 held that rebate under the same notification was restricted to basic duty only. He denied the rebate calculated on account of additional duty. He directed that any rebate taken on this coconut should be adjusted by the assessees in PLA. In their appeal before the Collector (Appeals) the assessee continued to maintain that the benefit was available of rebate of additional duty also. It was claimed that there was no provisional assessment since no bond under Rule 9(b) had been filed by the assessees. The Collector (Appeals) after examining the coverage of the notification upheld the lower authorities orders that the benefit for rebate on additional duty was not available. The present appeal arises out of this order.

2. Shri K.P. Joshi, ld. Advocate did not contest the belief that the rebate was not available on the additional duty quantum but claimed that the orders of the Asstt. Collector to the effect that the assessee should adjust any rebate wrongly taken at once were beyond the coverage and scope of the show cause notice. He claimed that the issue of a show cause notice under Section 11-A was mandatory for recovery of the duty. He prayed for setting of this order.

3. Shri Satnam Singh, ld. SDR claimed that the assessments are to be construed as provisional until the classification list is approved. In this connection, he relied upon the Tribunal judgment in the case of Miles India Ltd. reported at 1993 (68) ELT 694. According to him, therefore, there was no requirement for issue of show cause notice.

4. We have carefully examined the rival claims.

5. The Supreme Court in their judgment in the case of Modi Rubber Ltd. reported at 1988 (25) ELT 849 had held that where notification was issued under Rule 8(1) of the Central Excise Rules, without reference to any other statue, the coverage thereof is limited to the duty of excise payable under the Central Excise Rules, 1944. This judgment was followed by the Tribunal in their judgment in the case of C.D. Textile Industries Limited reported at 1996 (88) ELT 44. On this point, therefore, the lower orders do not merit any review.

6. As regards the claim of the ld. Advocate that the Asstt. Collector had erred in finalising the assessment and in directing the assessees to repay the rebate taken without issue of the show cause notice under Section 11-A, we find that at the relevant time the assessments had not be held as provisional pending finalisation of the classification list. This is as per the law laid down by the Supreme Court in the case of Samrat International (P) Ltd. reported at 1992 (58) ELT 561 which was followed by the Tribunal in the later cases including that of the Miles India Ltd. reported at 1993 (68) ELT 694 cited by the ld. SDR. We also find that when the demand is in the nature of finalisation of provisional assessment, there is no requirement that a show cause notice under Section 11-A should be issued (Serai Kella Glass Works - 1997 (70) ECR 230 (S.C.)).

On these observations, we find no substance in the ground raised by Shri Joshi upholding the impugned order and dismiss this appeal.