TMI Blog2007 (2) TMI 375X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court could be petitioned for a clarification, and, as desired by JCDR, we passed a formal order on that day (Misc. Order No. 174/2006 dated 3-4-2006) to enable the respondent to move the Hon ble Court for appropriate orders. But no order of High Court was produced by the respondent, nor by the appellant. 1.3 On 18-12-2006, when the case was taken up for hearing, learned counsel and learned SDR stuck to their respective positions, the latter pressing for disposal of the appeal in view of completion of BIFR s adjudication proceedings. Learned counsel s stand was that, before full implementation of the rehabilitation scheme sanctioned for the company by BIFR, it could not be said that the proceedings were complete. 1.4 We examined the record of BIFR s proceedings produced by the appellants counsel. In order dated 2-6-2000, BIFR [Board for Industrial and Financial Reconstruction] declared the company sick in terms of Section 3(1)(o) of the Sick Industrial Companies (Special Provisions) Act, 1985 [SICA, for short] and appointed M/s. Industrial Development Bank of India [IDBI] as Operating Agency under Section 17(3) of the Act for preparing a revival scheme for the company. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exempted coking coal of ash content below 12% from payment of customs duty. Upon production of the required documents by the assessee, the assessments were finalised in their favour in April 87 and August 87 respectively. However, on 2-9-1987, two show-cause notices were issued to the party under Section 28(1) of the Act demanding Rs. 15,22,741/- and Rs. 74,44,562/- respectively as customs duty on the goods covered by the two Bills of Entry. These notices alleged that LAM coke imported by the appellants was correctly classifiable under Heading 27.04 of the Customs/Central Excise Tariff and different from coking coal and hence the benefit of the Notification was not available to it. The appellants denied these allegations and contested the demand of duty on merits as also on the ground of limitation. The Assistant Collector rejected their contentions and confirmed the demand. In appeal, the Collector (Appeals) upheld the demand. Hence the present appeal of the assessee. 3. The Hon ble High Court s directive for fresh disposal of the case reads thus : ... the second respondent shall deal with all other aspects, which are to be addressed, excepting that of classification . 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ype is that produced by heating bituminous coal in chemical recovery or beehive coke ovens (metallurgical coke), one ton of coal yielding about 0.7 ton of coke. It is used chiefly for reduction of iron ore in blast furnace [The Condensed Chemical Dictionary - Gessner G. Hawley]. It appears that the principal type of coke which is used as reducing agent in the extraction of metal from its ore (e.g; iron from iron ore) is also called metallurgical coke and coal suitable for producing such coke is called coking coal. Therefore, coke is not the same as coking coal. The exemption under Notification No. 166/80 was available to coking coal and not to the metallurgical coke imported by the appellants. 4.2 Issue No.2 : Whether, after allowing clearance of goods for home consumption under Section 47 of the Customs Act, it was open to the Department to issue show-cause notices under Section 28 of the Act without modification of the assessment order : Learned counsel submitted that the show-cause notices were not maintainable for want of modification of the assessment order. He relied on Final Order No. 784 785/05 dated 17-5-2005 [2005 (189) E.L.T. 289 (Tribunal)] passed by the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 28 could be issued without reviewing the order of assessment was not accepted. Our decision was upheld by the Hon ble High Court of Madras by following the apex Court s ruling in Jain Shudh Vanaspati case. In the case of Wipro Ltd. (supra), the Tribunal s Bangalore Bench relied on the ratio of the apex Court s decision in Priya Blue Industries (supra), to hold that, unless the finalised assessment was reviewed, it was not open to the department to demand duty from the assessee under Section 28 by classifying the goods under a different Tariff entry. Apparently, the view taken in Wipro case is in favour of the appellants. But we have got to follow the view taken in Venus Enterprises (supra) upheld by the Madras High Court. Therefore, the issue is answered in favour of the Revenue. 4.3 Issue No.3 : Whether the demand of duty is time-barred : It is the concurrent finding of the lower authorities that the provisional assessments of the goods cleared under Bills of Entry dated 6-6-1986 and 8-5-1987 were finalised in April 87 and August 87 respectively. In the absence of Revenue s appeal against the finding, we have rejected the SDR s submission that the assessments ..... X X X X Extracts X X X X X X X X Extracts X X X X
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