Customs, Excise and Gold Tribunal - Bangalore
Paro Food Products vs The Commissioner Of Customs And Central ... on 21 July, 2006
ORDER T.K. Jayaraman, Member (T)
1. This appeal has been filed against order-in-Appeal No. 4/2005 CE dated 31.1.2005 passed by the Commissioner of Customs & Central Excise (Appeals-II), Hyderabad.
2. Revenue filed an appeal against Order-in-Original 60/97 dated 11.8.97 passed by the Asst. Commissioner of Central Excise, Hyderabad, II Division. In the said Order the Asst. Commissioner dropped the following demands on the ground that the assessments were never provisional.
(a) Rs. 15,46,773/- for the period 1.4.1989 to 12.9.1990
(b) Rs. 48,46,178 for the period 1.11.1993 to 31.3.1996 The Commissioner (A) in the impugned order gave a finding that the Asst. Commissioner erred in dropping the above demands and held that the appellants are liable to pay the above amounts. The appellants are aggrieved over the impugned order of the Commissioner (A), hence they have come before this Tribunal for relief.
3. S/Shri L. Goyal and T. Ramesh, learned advocates appeared for the appellants and Shri K.S. Reddy, learned JDR appeared for the Revenue.
4. The learned advocates urged the following points.
(i) The appellate authority ought to have seen that the original Adjudicating Authority has rightly held that there is no order under Rule 9B, nor any bond or Bank Guarantee requiring the pricelist to be treated as provisional. The view of the lower authority is upheld by this Bench in Final Order No. 912/2003 dated 11.7.2003 in appellant's own case. The Tribunal in deciding the above issue has followed the matter reported in 2002 (53) RLT 507) (SC) - Metal Forging and Another.
(ii) The demand is based on alleged Balance Sheet of the principals. The said Principal is not a party to the Show Cause Notice and no statement was recorded from them to explain the difference, if any. The failure to record the statements and to make principal as a party is fatal and hence, the demand is not sustainable based on balance sheet of the principal. This view has been accepted by this bench in Final Order No. 145/2005 dated 25.1.2005 following the ratio of the following decisions.
a. - British Physical Laboratories v. CCE b. - Kanam Foam Inds. v. CCE c. 2004 (62) RLT 626 (Tri.-Del.) - S.S. Poly Printers v. CCE.
(iii) As per Circular No. 26/89 dt.24.4.1989 for treating any assessment as provision, there should be specific order from the Asst. Commissioner stating the reasons for the assessment to be provisional. There should be a bond and bank guarantee. The Commissioner (A) failed to see this point.
(iv) The appellant has rightly pointed out that the Executive Commissioner has not set out the grounds of appeal to be referred to Commissioner (A) as contemplated under Section 35E(2). Failure to do so is fatal to the whole proceedings.
5. The learned JDR reiterated the findings of Commissioner (A).
6. We have gone through the records of the case carefully. No doubt Revenue was aggrieved over the Order-in-Original dated 11.8.1997 passed by the Asst. Commissioner of Central Excise. Hence, the Commissioner issued an Authorization Order No. 7/98 dated July 1998 authorizing the Asst. Commissioner to appeal. However, the Commissioner appears who have signed the authorization order without enclosing the grounds of appeal, which is said to have been specified in Annexure-A. We do not find any Annexure-A at all. This has also been pointed out by the appellants before the Commissioner (A) in the cross objection filed by them. We agree with the appellants that non-specification of grounds of appeal is fatal to the entire proceedings. As per Section 35E, the Commissioner should indicate for determination of the points arising out of the order of the lower authority. Further, the lower authority in Para 10 and 11 of her order has clearly stated that the assessments during the relevant period were not provisional under Rule 9B and the pricelists were finally approved. As per Board's Circular 26/89 dt. 24.4.89, there must be a specific order from the Asst. Collector directing provisional assessment in a particular case clearly stating the following and it has been further stated in para 3 that these conditions are not observed, the assessments will not be considered as provisional.
(i) The grounds on which the provisional assessment has been considered.
(ii) Rate and value at which duty is to be provisionally paid.
(iii) The amount of differential duty for which bond is to be executed.
(iv) The amount of security or surety as may be affixed by Asst. Collector keeping in view the instructions issued by Board from time to time.
The impugned Order-in-Appeal while holding that the Asst. Commissioner had erred in holding that the assessments were not provisional has not given any evidence to show that the assessments were actually provisional in the form of bond executed under Rule 9B. There is only a reference to some revised pricelist and the admission of the assessee that the assessments were provisional from 1.4.1988 and this is not sufficient. It is very clear that there is no evidence to show that the assessments were provisional. In these circumstances, we do not find any merit in the impugned Order-in-Appeal which has been passed even without the grounds of appeal. Hence, we allow the appeal with consequential relief, if any.
(Operative portion of this Order was pronounced in open court on conclusion of hearing)