2006 (7) TMI 559 - AT - Central Excise

Tribunal overturns Order-in-Original, finds Asst. Commissioner error

PARO FOOD PRODUCTS Versus COMMR. OF CUS. & C. EX. (APPEALS-II), HYDERABAD

The Tribunal allowed the appeal against Order-in-Original 60/97, finding that the Asst. Commissioner erred in dropping certain demands, holding the ... Provisional assessment - Conditions - Appeal by Department Issues:- Appeal against Order-in-Original- Alleged demands dropped by Asst. Commissioner- Appellants contesting the impugned order of Commissioner (A)- Failure to treat assessments as provisional- Non-specification of grounds of appeal by Executive Commissioner- Lack of evidence for provisional assessmentsAnalysis:1. Appeal against Order-in-Original:The appeal was filed against Order-in-Original 60/97 passed by the Asst. Commissioner of Central Excise, Hyderabad, II Division. The Commissioner (A) in the impugned order found that the Asst. Commissioner erred in dropping certain demands and held the appellants liable for the amounts. This led the appellants to approach the Tribunal seeking relief.2. Alleged demands dropped by Asst. Commissioner:The demands amounting to Rs. 15,46,773 for one period and Rs. 48,46,178 for another period were initially dropped by the Asst. Commissioner. However, the Commissioner (A) reversed this decision, holding the appellants responsible for the said amounts, prompting the appeal.3. Appellants contesting the impugned order of Commissioner (A):The appellants, represented by learned advocates, contested the impugned order on various grounds. They argued that the original Adjudicating Authority correctly found no order under Rule 9B or any requirement for the pricelist to be treated as provisional. They also highlighted the failure to involve the principal party in the proceedings, citing previous decisions supporting their stance.4. Failure to treat assessments as provisional:The advocates pointed out that specific conditions must be met for assessments to be considered provisional, as per Circular No. 26/89. They argued that the impugned order failed to demonstrate that the assessments were actually provisional, lacking evidence such as a bond executed under Rule 9B. The Tribunal agreed, finding no merit in the Order-in-Appeal, which was passed without specifying the grounds of appeal.5. Non-specification of grounds of appeal by Executive Commissioner:The Tribunal noted a crucial flaw in the proceedings, where the Executive Commissioner failed to specify the grounds of appeal as required by Section 35E. This omission was deemed fatal to the entire process, as it hindered the proper determination of points arising from the lower authority's order.6. Lack of evidence for provisional assessments:Ultimately, the Tribunal found that there was a lack of evidence to support the contention that the assessments were provisional. Despite references to a revised pricelist and the assessee's admission of provisional assessments from a certain date, the absence of concrete proof like a bond executed under Rule 9B rendered the impugned Order-in-Appeal lacking in merit. Consequently, the appeal was allowed with consequential relief granted, if applicable.