SHAKTI BEVERAGES LTD. Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) The above appeal at the instance of the assessee challenging the order passed by Commissioner (Appeals) dated 15 -2 -2001 has been referred for consideration of the Larger Bench in view of an apparent conflict between decisions of this Tribunal on the issue whether the Tribunal can annul a proceeding for finalizing a provisional assessment on the ground of delay. The relevant facts of the present case are as follows : -

(2.) The appellants imported machinery for packaging under the Project Import Regulations. The goods were classified under Heading 9801.00 of Customs Tariff Act. The importers sought the benefit of Notification No. 125/86 -Cus. dated 17 -2 -86, The less charge demand notice was issued seeking recovery of duty short -levied to the extent of Rs. 27,26,000/ - for the reason that the benefit of notification was not available to the importers. The Assistant Commissioner confirmed the duty. Aggrieved by the above, the importer took up the matter in appeal. The Commissioner (Appeal) held that the demand raised is premature in view of the provisions contained under Section 28(3)(b) of the Customs Act, 1962 as provisional assessment was not finalised. He, therefore, set aside the order confirming the demand but further held that his order will not stand in the way of the adjudicating authority for finalizing the assessment under the relevant provisions of the Customs Act, 1962 and then taking appropriate action. It is the above order that is under challenge before us.

(3.) It is contended on behalf of the appellant that the Commissioner (Appeals) has committed grave error in treating the assessment as provisional and also permitting the department to finalise the same after a period of long delay. The appellant had paid duty on 26 -2 -87. A bond was executed by the appellant on 6 -2 -87. A reading of the bond will clearly show, as was observed in the reference order, that the assessment of the goods imported under the Project Import Regulation was provisional. The less charge demand which was in the nature of a show cause notice was correctly set aside by the Commissioner (Appeals) for the reason that such demand cannot be raised without finalizing the assessment. The Commissioner (Appeals) was within his powers to order that it was open to the department to finalize the assessment under the relevant provisions of Customs Act, 1962 and then take appropriate action.