Oswal Petrochemicals Ltd. vs Commissioner Of Central Excise, Mumbai 2025 INSC 578 -Central Excise Rules
Central Excise Rules 1944-Rule 56- The use of the word shall in sub-rule (2) is indicative of the mandatory nature of the provision. The officer who has taken the samples for testing has to communicate the result of such test to the manufacturer. Therefore, the officer is under a positive mandate to communicate to the manufacturer the result of such test. On the other hand, what sub-rule (4) contemplates is that upon receipt of the test result if a manufacturer is aggrieved by the same, he may within 90 days of the date on which the result of the test is received by him, request the Assistant Commissioner that the samples be re- tested. Unless a copy of the test report is furnished to the manufacturer, he would not be in a position to seek re-test within the specified period, if he is aggrieved by the result of the test. Therefore, a copy of the test report has to be furnished to the manufacturer. In such circumstances, extracting the gist of the test reports, that too in the show-cause notices, would clearly be in breach of Rule 56 (2) and Rule 56 (4) of the Central Excise Rules. Such a procedure is not contemplated under Rule 56. That apart, it will defeat the right of a manufacturer to seek re-test if he is aggrieved by the result of the test. CESTAT has missed the point when it says that appellant was aware of the test report as gist of the same was communicated to it through the medium of the show-cause notices but it never sought for any re-test- The manufacturer can seek re-test within the stipulated period only if he is furnished with a copy of the test report. (Para 39)
Central Excise Rules 1944-Rule 9B- The first and foremost requirement of Rule 9B is that it is the assessee who has to request in writing the proper officer for provisional assessment in the event the assessee is unable to determine the value of excisable goods or the correct classification of goods. This is the first requirement. The second requirement is that the proper officer competent to make provisional assessment may direct after making necessary inquiry that duty leviable on such goods shall be assessed provisionally. Such directions the proper officer can issue only by passing a written order and not otherwise. Thirdly, the assessee must execute a bond in the proper form binding the assessee to pay the differential amount of duty as provisionally assessed and as may be finally assessed. However, Rule 9B also provides for an exception. If the proper officer is satisfied that the self-assessment made by the assessee is not in order, he may direct the assessee to resort to provisional assessment. In any event, for an assessment to be provisional in terms of Rule 9B, an order is required to be passed- in order to establish that the clearances were of provisional basis, an order under Rule 9B and payment of duty on provisional basis are essential. (Para 45-47)
