TMI Blog2004 (6) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... t the order-in-original passed by the Commissioner of Customs, Mumbai. The Commissioner, in the impugned order was dealing with the show cause notice issued by the DRI to the importers seeking change of classification of the imported material described under a brand name "Expancel 642 WU (Blowing Agent), the correct description/chemical name of which was "Microspheeres Poly Vinylidene Chloride". I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same to be bad in law. The instant Revenue appeal challenges the order of the Commissioner. 2. In the Revenue appeal, it has been prayed that, even though the assessments are provisional and the provisions of Section 28 were not attracted, the Commissioner ought to have determined the liability to confiscation and penal action. The provisional assessment was resorted to for finalization of cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the basis of provisional assessments are concerned, we are in agreement with the Commissioner that the impugned show cause notices are bad and without the authority of law. Instead of issuing separate show cause notices proposing change of classification on the basis of evidence that was in unearthed, the DRI could have furnished the said evidence to the proper officer dealing with finalisat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly reviewed in favour of Revenue in terms of provisions contained in Section 129D of the Customs Act, the Commissioner could not have examined the merits of the case on classification which was finalized in favour of the respondents by the proper officer. Since in this case, the duty liability itself could not be confirmed, we note that non-determination of penal liability cannot be alleged to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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