TMI Blog2004 (6) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... cise directed the authority to intimate the Commissioner as and when the provisional assessment was finalized, so that the Commissioner can proceed with the adjudication on the basis of show cause notice. He also observed that direction given to the Assistant Commissioner is only an interim direction in the course of adjudication proceedings in respect of show cause notice without prejudice to any further orders which the adjudicating authority may pass subsequently. The above direction given by the Commissioner is also under challenge in these appeals. E/1793/96 E/1794/96 : 3.These appeals are filed by ITC challenging the orders passed by the Commissioner of Central Excise against Order No. 6/96, dated 13-9-96 in respect of proceedings initiated under show cause notices dated 10/11-8-83 and 8-10-84. The period involved is 1-7-80 to 31-3-82 and 1-4-82 to 30-6-83. In the impugned orders also the Commissioner rejected the contention of the assessee that show cause notices taken up for consideration are invalid on the ground that they had been issued prior to finalization of provisional assessment. In this case also the Commissioner had given direction similar to those contained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have no legs to stand. E/2761 2762/2001-A : 6.These appeals are filed by Crown Tobacco Company and Masters Tobacco Company against Order No. 38/2000 of CCE, Delhi, dated 29-12-2000 on the same ground as in E/2760/2001-A, filed by ITC. E/1889/2002-A : 7.This appeal has been filed by the Revenue against Order No. 38/2000 of Commissioner of Central Excise, Delhi dated 29-12-2000 to the extent the Revenue is aggrieved by that order contending that additional consideration should be added to the value and not to the price and verification of quantification should have been done in consultation with the Departmental Officers. This appeal will also depend upon the legality of Order No. 5/96, dated 30-8-96. E/3083/2002-A : 8.This appeal is tiled by against Order dated 31-7-2002 passed by the Commissioner (Appeals) in an appeal filed by the Department against Order of Dy. Commissioner of Central Excise dated 22-9-2000. In the impugned order the Commissioner (Appeals) took the view that he has no jurisdiction to decide the issue raised in the appeal in view of the direction given by the Commissioner, Delhi in Order Nos. 5/96 and 6/96 dated 13-9-96. Under those orders the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder order dated 20-11-99 setting aside the order impugned before him and remanding the matter for fresh consideration by the original authority. The proceedings remanded covered a period from 1-10-75 to 28-2-83 which would cover part of the period invoked in show cause notice dated 25-9-87. Therefore, request was made by the assessee to remand the proceedings before the Tribunal also to the original authority. The Revenue agreed to the above course of remand to the Assistant Commissioner for consideration of all issues raised in show cause notice dated 25-9-87 along with the de novo consideration of the provisional assessment as ordered by Commissioner (Appeals) in his order dated 20-11-99 except that portion of the show cause notice dated 25-9-87 relating to the imposition of penalty which aspect was required to be decided by the Commissioner, Delhi after the finalisation of provisional assessment by the Assistant Commissioner. According to the Revenue such reservation was necessary for two reasons. Firstly, the Jurisdictional Assistant Commissioner of Central Excise who will be required to finalise the provisional assessment would not have the jurisdiction to consider charges an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice. The jurisdictional Assistant Commissioner was directed to finalize provisional assessment expeditiously. It was also held that the Revenue shall be at liberty to examine the issue of any short-levy, non-levy and consequent penalty liability only after finalization of the assessment as per law. In coming to the above conclusion the Bench had applied the ratio of the judgment of the Hon'ble High Court of Bombay in Union of India v. Godrej Boyce Mfg. Co. Pvt. Ltd. which was confirmed by the Supreme Court in the order in SLP C. No. 12824/89 dated 8-3-90. In the above case it was held that since the show cause notice was based upon material which was the same as was concerned with the provisional assessment pending, the show cause notice was of dubious validity. It was further held that the relevant date for issue of such a show cause notice under Section 11A would be the date of adjustment of duty after final assessment. While confirming the above judgment the Apex Court observed as follows : "Nothing prevents petitioners from the utilising any material collected by them for the purpose of making the final assessment and that such material does not cease to be available to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned notice as independent material to support the finalization of assessment, after making this material known to the appellants in writing and after considering their response thereto both in writing and on personal hearing. 17.It was on the basis of the above finding the Tribunal gave the following directions. (b) The Jurisdictional Assistant Commissioner is directed to expeditiously address himself to the finalisation of the provisional assessments as already detailed above; (c) In view of the aforesaid judicial decisions, we find that the Revenue shall be at liberty to examine the issue of any short levy, non-levy and consequent penal liability only after the finalisation of the assessment, etc. as per law. Civil Appeal No. 4166/2000 [2003 (154) E.L.T. 358 (S.C.)] filed by the Revenue against the decision of Chennai Bench was disposed of by the Hon'ble Supreme Court in the following manner :- "It is stated by the Counsel for the assessee that pursuant to the order of this Court dated 21-7-2000, the Excise authorities have, by their order dated 26-7-2001 finalised the provisional assessments. We are told that the Respondent, ITC Ltd. had thereafter filed an Appeal to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst Order No. 38/2000 to the extent Revenue is aggrieved by a part of that order. 20.Order No. 5/96 and show cause notice dated 21-10-87 were challenged on the same ground on which Order No. 4/96 was challenged before the Chennai Bench. We follow the ratio of the decision by Chennai Bench and set aside the show cause notice dated 21-10-87 and Order No. 5/96, dated 30-8-96. In the light of the above, Order No. 38/2000, dated 29-12-2000 passed by the Commissioner of Central Excise, Delhi has also to be set aside and we do so. The Jurisdictional Assistant Commissioner will finalise the provisional assessment expeditiously. The Revenue can utilise any material contained in the impugned notice as independent material to support the finalisation of assessment after making the material available to the assessee in writing and after considering their response thereto both in writing and on personal hearing. The revenue shall be at liberty to examine the issue of any short levy, non levy and consequent penal liability only after finalisation of the assessment as per law. Appeals E/1795/96, E/1791/96, E/1792/96, E/2760/2001, E/2761/2001 and E/2762/2001 are allowed as above and E/189/200 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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