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TMI Blog2013 (1) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... urchase contract had a price variation clause. Thereafter the assessment was finalised for higher duty adopting higher price proportionate to higher GCV in respect of the 8 bill of entry on 25-2-2004. The Superintendent also finalized the assessment and simultaneously on the same day issued show cause notices requiring the appellant to show cause as to why differential of duty should not be demanded and recovered with interest. The notices were adjudicated and proceedings were dropped by the Assistant Commissioner on 28-2-2005 against which the Revenue filed an appeal before the Commissioner (Appeals). The appeal was filed on the ground that the Assistant Commissioner should not have passed the order when the assessment has already been fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalisation of the assessable value and duty liability on the basis of test results and appellant had been required to show cause as to why the differential duty should not be levied and collected. If the assessment was to be challenged by the appellant, the appellant would have undertaken the same exercise of challenging the correctness of the assessment which is what was done before the Assistant Commissioner when the show-cause notice issued by the Revenue was adjudicated. In view of above, he submits that there was no need for the appellant to challenge the assessment since the assessment was the subject matter of show-cause notice issued by the department and if in the adjudication process, on merit, it was held that the finalised asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the submissions made by both sides. 5. In this case after all the bills of entry were finally assessed, simultaneously on the very same day show-cause notice was issued to the appellant and it would be appropriate to re-reproduce 3 relevant paragraphs of the show-cause notice : "Whereas the invoice price shown in Clause 5 adjusted as per price adjustment Clause No. 7 i.e. on the basis of GCV (ADB) of Sale-purchase contract No. 007/CO/2001/B, dated 4-5-2001 between M/s. Wilson Impex Pte. Ltd. of Singapore and M/s. Lakshmi Cement, New Delhi. As per above mentioned clause the price adjustment for quality was as under : Price adjustment for quality = Price (as per clause 5) x Actual GCV (ADB) 6500 Whereas it appears from that sampl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the differential duty worked out which was done by the appellant consequent to which the Order-in-Original was passed. It is worthwhile to notice the heading of the show-cause notice issued on 28-8-2004 "under Section 28 of Customs Act, 1962" which provides for action to be taken when duty have not been levied or short levied. This would show clearly that the proper officer who issued issue the show-cause notice and the adjudicating authority felt that the differential duty would become recoverable only after adjudication process is completed. Further the word used "levied" in para 1 of the show-cause notice also gives an impression that the proceedings were initiated to finalise the differential duty after giving an opportunity to the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entry assessment order, that also would have been rejected on the ground that the show-cause notice has been issued giving an opportunity to challenge revision of value and differential duty. Even though the Superintendent put the remarks that the bill of entry is assessed finally, he issued the show-cause notice proposing to give an opportunity to challenge the differential duty and merits thereof. This would mean that the assessment was finalised subject to the show-cause notice. This is the only proper and legal interpretation of the proceedings in this case. In view of above discussions, we find that the impugned order taking a view that the assessment is final and therefore the show-cause notice and further proceedings initiated were ..... X X X X Extracts X X X X X X X X Extracts X X X X
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