IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. Restoration Application no. 448/2008 IN Central Excise Reference no. 1/2008 Vov Sara India (Pvt.) Ltd. ----appellant/applicant. Vs. Customs Excise & Service Tax and another.----Respondents Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Dated May 2, 2008: Per Coram:- Sri Pulak Raj Mullick, learned counsel for the appellant/applicant and Sri Arvind Vashishtha, learned counsel for the respondents are present. This is restoration application no. 448 of 2008 for restoration of the Central Excise Appeal no. 2 of 2008 (later endorsed as reference no. 1/2008). Learned counsel for the appellant/applicant states that he was busy on the date fixed in the Court Room no. 10, on the date when order dismissing the appeal was passed. The application is supported by an affidavit of P.K. Dhawan, Vice President of the appellant/applicant company. The restoration application no. 448/2008 is allowed. The order dated o2.04.2008 passed by this Court in Central Excise Appeal no. 2 of 2008 (later endorsed as reference) is recalled. It is also brought to our notice that u/s 35 G of Central Excise Act- 1944, earlier reference used to be made, but after the amendment vide the Finance Act of 2003, appeals are maintainable in the High Court. It appears that due to the wrong impression, as the amended law was not brought to the notice of the Court this Court (vide its order dated 21.02.2008) directed the appellant to move an application u/s 35H of the Act, in pursuance to which, the amendment application appears to have been moved by the appellant. Having now considered the amended provisions of Section 35G (amended as Finance Act, 2003), we hereby recall the orders dated 21.02.2008 and 28.03.2008 also. The appeal shall be treated to have been filed u/s 35G of the Central Excise Act, 1944, as it was originally filed by the appellant. The amendment incorporated in the memorandum of appeal shall be struck off. Heard on admission. Admit the appeal on the following questions of law:- i. Whether, the Tribunal was justified in holding that in absence of any order passed in terms of Rule 9B of the Central Excise Rules, 1944, the assessment could not be termed as provisional and in holding that in absence of provisional assessment, the limitation of time bar as prescribed in section 11A, would apply and whether the order of the Tribunal is bad in law as it ignores the factual and legal position, that clearances to ONGC, Mumbai were provisional and against CT-2 certificates, covered for concessional rate of duty, under notification no. 5/95 dated 28.2.99 and covered under Chapter X procedures outlined in Rule 192-196BB? ii. Whether, the authorities below had committed a legal error in not appreciating that Chapter X clearances were provisional clearances, equated with provisional clearances outlined under Rule 9B read with section 11B and whether, such provisional clearances could create any question of time bar as envisaged in section 11B? iii. Whether, the Tribunal committed an error in not appreciating that addendum to show cause notice, as bad in law, after conclusion of adjudication proceedings in final hearing by the adjudication authority and such addendum raised fresh grounds of rejecting the refund claim and whether the doctrine of res-judicata applied to a case wherein scope of show cause notice had been enlarged by an addendum? Notices are already accepted by Sri Arvind Vashishtha, learned Asstt. Solicitor General Union of India. List this appeal for final hearing in due course. (Dharam Veer, J.) (Prafulla C. Pant, J.) 02.05.2008 NCM