Adarsh Kumar Goel, J.
1 This petition seeks quashing of order of assessment dated 19.10.2010, Annexure P-8, under the provisions of the Central Excise Act, 1944 (for short, "the Act").
2 Case of the Petitioner is that it applied for provisional assessment under Rule 7 of the Central Excise Rules, 2002 (for short, "the Rules") for payment of duty on provisional basis based on MRP less abatements of 35%. Provisional assessment was made accordingly. By impugned order, final assessment was made at MRP without any abatement, without deducting sales tax, central excise and rebate.
3 Contention raised in the writ petition is that the Petitioner was not given adequate opportunity of being heard before passing the impugned order. In any case, discount usually C.W.P. No. 19623 of 2010 given to the buyers and sales tax and excise components were not taken into account, even though these facts were noticed in the order of provisional assessment.
4. We have heard learned Counsel for the Petitioner.
5. From the impunged order, we find that the assessing authority has recorded that the party did not give evidence for grant of discounts which may justify deductions from the MRP. Even though a letter was written to it, it failed to respond.
6. Learned Counsel for the Petitioner submits that giving of discount was evident even from earlier order dated 30.4.2010, Annexure P-2 while deduction of taxes was legally required. It is submitted that after provisional assessment, on 20.5.2009, fixing duty on MRP after abatement of 35%, in the final order, the duty was enhanced to MRP, without any opportunity to the Petitioner. Though letter dated 22.9.2010 was issued by the Superintendent, requiring the Petitioner to furnish data within two days, same cannot be treated as an opportunity of hearing. It is further pointed out that even excise duty and sales tax is included in MRP, which was illegal.
7. In view of the fact that the Petitioner has alternative remedy of filing the appeal, we do not find any ground to go into merits at this stage. However, without expressing any opinion on merits, we find that since even excise duty and sales tax having not been excluded from MRP and there is no sufficient consideration of plea of discount raised by the Petitioner, which C.W.P. No. 19623 of 2010 was earlier accepted in the provisional order and earlier assessment orders, we direct that the bank guarantee furnished by the Petitioner be not encashed, subject to the Petitioner keeping the same alive during the pendency of appeal which is proposed to be filed.
8. The petition is disposed of.
