1. The appeal relates to the period 1-7-1975 to 30-9-1975. The appellants had filed a price list on 1-7-1975, which was approved only on 7-8-1976, reducing the 18% discount claimed by the appellants to be allowed to their purchasers to 5%. In the meantime, clearances were effected and duty upon the basis of the price list was paid. In December 1975, March 1975 and April 1976, assessments for the months of July, August and September 1975 were made. On 29-10-1976, the Excise Authorities issued to the appellants a show-cause-cum-demand notice under Rule 10 of the Central Excise Rules claiming the amount of duty that arose by reason of the disallowed percentage of the aforesaid discount. The show-cause-cum-demand notice was confirmed on the ground that the appellants and their purchasers were interconnected and that the price at which the purchasers sold the goods was the appropriate price for valuation of the goods for excise duty purposes. The appeal was rejected, the aforesaid finding being confirmed. In the appeal before the Customs, Excise & Gold (Control) Appellate Tribunal, it was held that the order upon the price list not having been challenged, the appellants were bound to pay the duty demanded. The Tribunal assumed that the assessments that had been made in December 1975, and February and April 1976, "could only be on a provisional basis".
2. In this appeal against the judgment and order of the Tribunal, the learned Additional Solicitor General, appearing for the Revenue, submitted on 5-4-1995, "that he would defend the order of the Tribunal on the ground that Rule 10-A was attracted and even though the show-cause notice referred to Rule 10, it was open to the Revenue to contend that the action of the Revenue could be defended under Rule 10-A if the goods fall within that provision since the Revenue had the power to initiate proceedings for recovery of difference in duty. ... The learned ASG has also clarified that he would not contend that action for recovery could be taken under Rule 10, as in his opinion that provision would strictly not apply".
3. We agree with learned counsel now appearing for the Revenue that the real question is whether the assessments that were made in December 1975, and February and April 1976, were provisional assessments or final assessments.
4. Having regard to the fact that the Revenue had on 5-4-1995 indicated that it was not relying on Rule 10 but relying on Rule 10-A instead, it should have produced before us material to show that the assessments were such as would not be covered by Rule 10 but would be covered by Rule 10-A. No such material has been produced. Learned counsel for the Revenue submits that the matter should be remanded to the Tribunal to enable the Tribunal to look into this aspect.
5. We do not think that such a remand would be justified on the facts of the present case. The action that was taken was under Rule 10, that is to say, upon the basis that the assessments were final assessments. The orders of the authorities below, while not clear about this, would also suggest that the assessments were final assessments. The Tribunal has only proceeded upon the basis that the assessments "could only be on a provisional basis".
6. Having regard to the facts aforestated, we think that the appeal must now succeed.
7. The appeal is allowed. The order under appeal is set aside. No order as to costs.