SHANTI ALLOYS PVT. LTD. Vs. CC

JUDGEMENT

(1.) IN this appeal, the appellants are before us being aggrieved by two communications received by them as follows:

(2.) HEARD Sri R. Sudhakar, learned advocate for the appellants. He submits that aggrieved by these appellants approached the Hon'ble High Court of Karnataka, Bangalore, vide Writ Petition No. 20307/99, in consideration of which vide their order dated 29th June, 1999, the Hon'ble High Court directed the appellants to file an appeal before us within a week's time and to move for stay or any other interim order, as the Hon'ble High Court found it not proper to interfere in the matter at that stage. The Writ Petition was accordingly disposed of.

(3.) HEARD Sri S. Kannan, learned D.R., who submits that as per the instructions received from the Commissionerate, vide their letter dated 9.8.1999, a copy of which is filed by the learned D.R. in the Court, while the Commissionerate has recorded that there is no objection from their side for this Tribunal hearing the said appeal, however, they have prayed that since investigation is still under progress, the Tribunal may direct the petitioner to take provisional clearance of the goods after furnishing bank guarantee etc. as per the two letters noted above. The learned D.R. therefore, submits that the matter being still under investigation, obviously the lower authorities are not in a position at this stage to finalise the assessment with respect to these goods and have therefore, as per the procedure provided Under Section 18 of the Customs Act, 1962 given an opportunity to the appellants to get the goods provisionally released under provisional assessment by executing a bond with bank guarantee as indicated in these two letters noted above. Therefore, he submits that since these letters are only orders pertaining to provisional assessment and provisional clearance, they are not final orders and are, therefore, not appealable before the Tribunal in terms of Section 129A(l)(a), as they are not orders passed by the Commissioner of Customs as an adjudicating authority (emphasis supplied by us). He cites the case of Ahura Chemical Products Pvt. Ltd. v. CCE as reported in , wherein it has been held that the order of provisional assessment being an interim in nature, no appeal would lie against it as it could not be maintainable under Section 35B of the Central Excise & Salt Act, 1944. The learned D.R. submits that this decision is involving facts which are identical to the present issue and the said section is totally pari materia with Section 129A of the Customs Act and therefore, the ratio thereof has to be applied in this case.