TMI Blog2003 (2) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... y short-levied to the extent of Rs. 27,26,000/- for the reason that the benefit of notification was not available to the importers. The Assistant Commissioner confirmed the duty. Aggrieved by the above, the importer took up the matter in appeal. The Commissioner (Appeal) held that the demand raised is premature in view of the provisions contained under Section 28(3)(b) of the Customs Act, 1962 as provisional assessment was not finalised. He, therefore, set aside the order confirming the demand but further held that his order will not stand in the way of the adjudicating authority for finalizing the assessment under the relevant provisions of the Customs Act, 1962 and then taking appropriate action. It is the above order that is under challenge before us. 3. It is contended on behalf of the appellant that the Commissioner (Appeals) has committed grave error in treating the assessment as provisional and also permitting the department to finalise the same after a period of long delay. The appellant had paid duty on 26-2-87. A bond was executed by the appellant on 6-2-87. A reading of the bond will clearly show, as was observed in the reference order, that the assessment of the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 401 (S.C.). 6. As mentioned earlier, the duty was paid provisionally on 6-2-87 a bond in respect of provisional assessment was executed by the appellant on 6-2-87. Whatever less charge demand was issued on 27-11-87 directing the appellant to show cause within 30 days from the date of receipt of the same. The appellant filed his written reply on 19-12-87. Thereafter the appellant received a letter dated 29-10-92 alleging that it had failed to reply the less charge demand dated 27-11-87. To the above letter the appellant replied on 19-11-92. Thereafter a personal hearing was held before the Assistant Commissioner of Customs on 4-2-97. Two years later a fresh notice for personal hearing on 5-5-99 was received. The appellant attended the hearing. The Assistant Commissioner then passed order in original on 3-6-99 confirming the demand. Being aggrieved by the above order, an appeal was filed before the Commissioner (Appeals) who disposed of the same on 30-4-2001. It is the contention of the appellant that since the department took 12 years to pass the adjudication order, the Commissioner (Appeals) should have dropped the entire proceedings on the ground of delay. It is further submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been destroyed, the persons who were in charge were no longer in their employment and if matter is reopened it will cause serious detriment and prejudice to the petitioner. It was also observed that the department has failed to clarify the position as regards the directions given to Reserve Bank of India and an adverse reference was required to be drawn from such failure even otherwise. 9. We are afraid that the facts of the present case are entirely different. Firstly, this is a case of provisional assessment. There are no such circumstances available in this case which could give the appellant an impression that the provisional assessment has been finalised or dropped during the period as in the Bombay case where the Reserve Bank of India lifted the ban after the first adjudication. Appellant has also no case that due to the delay it could not effectively defend the allegation. On the other hand, its definite case both in the memorandum of appeal before the Commissioner (Appeals) as well as before this Tribunal is that all the relevant details had been furnished by the appellant before the authorities. It is relevant to note that apart from the written reply dated 19-12-87 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions contained under Sections 65 and 211 of Bombay Land Revenue Code (5 of 1979). Section 211 provided that the State Government and any revenue officer, not inferior in rank to an Assistant or Deputy Collector or a Superintendent of Survey, in their respective departments, may call for and examine the record or any inquiry or the proceedings of any subordinate revenue officer, for the purpose of satisfying itself or himself, as the case may be, as to the legality or propriety of any decision or order passed, and as to the regularity of the proceedings of such officer. The question that came up for consideration was whether the Commissioner can revise an order made under Section 65 at any time in exercise of the power under Section 211. No period of limitation was prescribed under Section 211. Referring to the provisions contained under Section 65, the Supreme Court observed that power under Section 211 has to be exercised within a reasonable time. In coming to the above conclusion the Apex Court referred to the provisions contained under Section 65 itself. It provided that if the Collector does not inform the applicant of his decision on the application within a period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Hindustan Lever Ltd. v. CCE, Bombay after referring to above mentioned decisions took the view that it is not in all cases where there is a delay, the Tribunal which is a creature of Statute can interfere if there is no specific period of limitation prescribed under the Statute. Tribunal has to examine whether on the ground of long delay there had been violation of principles of natural justice causing prejudice to the assessee. The Tribunal which is not clothed with the powers of a High Court exercising the jurisdiction under Section 226 of the Constitution, cannot prescribe a time limit for completion of the adjudication proceedings. After observing that the appellant was not able to place any material to show that the appellant was prevented on account of the delay for explaining his case properly before the adjudicating authority or that the appellant was in any way prejudiced on account of long delay, the Tribunal had declined to set aside the impugned order. A similar view was taken by the Tribunal in Calcom Electronics Ltd. v. CC, Mumbai. In this decision reference was also made to the two decisions of the Apex Court in Miles India Ltd. v. Assistant Collector of Customs an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Statute and the period of limitation prescribed in Central Excise Act and the rules framed thereunder must be adhered to. In Union of India v. Kirloskar Penumatic Company Supreme Court reiterated the above view. In the above case an importer challenged before the Bombay High Court an order passed by an appellate authority under the Customs Act rejecting his claim for refund. While disposing of the writ petition the High Court directed that the Customs authorities shall not reject the refund application on the ground that it was time barred. The Apex Court took the view that even while acting under Article 226 of the Constitution the High Court cannot direct the Customs authorities to act contrary to the statutory provisions regarding the limitation. It was observed as follows :- The power conferred by Article 226/227 is designed to effectuate the law, to enforce the Rule of law and to ensure that the several authorities and organs of the State act in accordance with law. It cannot be invoked for directing the authorities to act contrary to law. In particular, the Customs authorities, who are the creatures of the Customs Act, cannot be directed to ignore or act contrary to Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
