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Kalpataru Power Transmissions Ltd. Versus Commissioner of Customs (Import) , Nhava Sheva

2016 (3) TMI 700 - CESTAT MUMBAI

Validity of Commissioner (Appeals) order - Finalisation of assessment - Held that:- The Commissioner (Appeal) has given his finding on the issue of provisional assessment vide order dated 05/08/2005 and the appellants have challenged before the Tribunal and the same is still pending. The Commissioner (Appeals) has no jurisdiction to go into the same issue himself. The order of Commissioner (Appeals) is clearly without jurisdiction and is therefore, set aside. - Availability of Notification N .....

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Petitioner : Shri. T Vishwanathan, Advocate For the Respondent : Shri. A.K. Singh, Addl. Comm. (AR) ORDER PER: RAJU 1. The appellants are in appeal against order-in-appeal dated 13/02/2014 passed by the Commissioner (Appeals). The facts of the case are as follows: 2. The appellants filed a bill of entry for import of steam turbine. They claimed the same to be classifiable as project import under heading 98.01 of the Customs Tariff. They also claimed the benefit of notification No.6/02-CE dated 0 .....

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sis of the ratio of this Tribunal judgement in the case of Triveni Engineering & Industries Ltd., - 2004 (172) ELT 353. The appellant challenged the review on the grounds that the review is time barred as the order dated 09/02/2005 passed by the Commissioner under Section 129D (ii) is beyond six months from 25/02/2004, i.e. the date of finalisation of provisional assessment. It was argued that Section 129D of the Customs Act, requires the review of any order as far as possible within a perio .....

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hese issues raised before him. The appellant filed an appeal before the Tribunal. The said appeal is pending. 3. Meanwhile, on 26/06/2007 the Revenue issued a letter to the appellant directing them to pay dues of ₹ 57,11,429/- along with interest. The appellant challenged the said notice on the ground that no demand has been issued to them under Section 28 of the Customs Act and without recourse the such procedure, revenue cannot suo motu demand duty. It was also argued that they have file .....

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irmed the said demand notice observing that the benefit of Notification No.06/2002 is not available to the appellant. However, the said order did not answer the specific issue of limitation raised by the appellants against the notice dated 26/06/2007 issued under Section 28. The appellant challenged the said order dated 09/05/2008 before the Commissioner (Appeals) on the ground that no show-cause notice under Section 28 of the Customs Act has been issued to them before confirming the duty under .....

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fit of notification, in respect of CVD on the impugned goods. The Commissioner (Appeals) vide order dated 29/12/2008 rejected the appeal filed by the appellant on the ground that the Commissioner (Appeals) had earlier passed an order dated 05/08/2005 and on the basis of the same demand notice dated 26/06/2007 under Section 28 of the Customs Act was confirmed by the Assistant Commissioner vide order dated 09/05/2008. It was held that since there is no stay from the CESTAT against the said order o .....

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d by the department. The Commissioner (Appeals) has set aside the order of the final assessment. The order passed by the Commissioner (Appeals) in that regard clearly read thus:- Hence the assessment order of the lower authority is set aside, and the department s appeal is allowed . It is pertinent to note that after setting aside the order of the final assessment, the Commissioner (Appeals) did not issue any further directions in order to proceed to finally assess the Bill of Entry in exercise .....

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ce having set aside the order of final assessment passed by the lower authority. Considering the provisions of Section 128A as amended, it was the duty of the Commissioner to pass an appropriate order in that regard. In the absence thereof, we fail to understand how steps can be taken by the department directly under Section 28 by issuing notice in the manner it was issued. 7. Once it is clear that the final assessment in the matter was to be completed, the question of resorting to recovery of t .....

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eps in accordance with law Relying on the order of the Tribunal dated 24/06/2009 the Commissioner (Appeals) again took up the adjudication against the order-in-original dated 09/05/2008. The appellant argued before the Commissioner (Appeals) that the said proceedings before the Commissioner (Appeals) pertain to the notice dated 26/06/2007 demanding duty. It was argued by them that the CESTAT order has not remanded the case for fresh adjudication either on limited point or on entire dispute. He f .....

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/12/2008 in F.No.S/49-383/2008 Misc JNCH and further observed that it was the duty of the Commissioner (Appeals) to pass an appropriate order. I, therefore, pass a final order on the subject issue . The Commissioner (Appeals) observed that the Tribunal has in its order dated 24/06/2009 observed that it was the duty of Commissioner to pass an appropriate order for finalisation of assessment in accordance with the law. The Commissioner (Appeals) thereafter denied the benefit of Notification No.6/2 .....

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9 passed by this Tribunal did not remand the matter for fresh adjudication. Therefore, the decision taken by the Commissioner (Appeals) is without jurisdiction. It was argued that earlier order dated 29/12/2008 has merged with the order of Tribunal dated 24/06/2009. It was also argued that the impugned order has been wrongly treated as a direction to finalise the assessment. It was argued that the assessment was finalized by the adjudicating authority and dispute relating to the availability of .....

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s also argued that they are entitled to the benefit of notification No.06/2002. 5. Learned AR relying on the impugned order. The learned AR submits that the Tribunal vide order dated 24/06/2009 has observed that the Commissioner should have finalise the assessment. He argued that this amounts to direction to the Commissioner (Appeals). 6. We have considered the rival submissions. 7. We find that there are two proceedings taking place simultaneously in this case. One proceeding relating to finali .....

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ion 28 of the Customs Act, 1962 asking the appellant to deposit dues of ₹ 57,11,429/- along with interest. The same was followed by a stay application before this Tribunal which was dismissed vide its order dated 16/11/2007. This was followed by an order-in-original dated 09/05/2008 against which an appeal was filed before the Commissioner (Appeals) which was decided on 29/12/2008. This was followed by the order of Tribunal dated 24/06/2009. 8. It is seen that the issue of finalisation of .....

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004. However, the same was subjected to the appeal filed by the department. The Commissioner (Appeals) has set aside the order of the final assessment. The order passed by the Commissioner (Appeals) in that regard clearly read thus:- Hence the assessment order of the lower authority is set aside, and the departments appeal is allowed . It is pertinent to note that after setting aside the order of the final assessment, the Commissioner (Appeals) did not issue any further directions in order to p .....

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the order of Commissioner (Appeal) in his order dated 05/08/2005 should have proceeded. The Commissioner (Appeal) has given his finding on the issue of provisional assessment vide order dated 05/08/2005 and the appellants have challenged before the Tribunal and the same is still pending. The Commissioner (Appeals) has no jurisdiction to go into the same issue himself. The order of Commissioner (Appeals) is clearly without jurisdiction and is therefore, set aside. The appeal No.C/86841/14 is acco .....

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ssed by the Commissioner (Appeals) in that regard clearly read thus:- Hence, the assessment order of the lower authority is set aside and the department s appeal is allowed It is pertinent to note that after setting aside the order of the final assessment, the Commissioner (Appeals) did not issue any further directions in order to proceed to finally assess the Bill of Entry in exercise of the powers under Section 128A as amended with effect from 11/05/2001. It is now settled law that in case the .....

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