Provisional assessment cannot be raised for the first time in appeal to defeat a limitation plea under customs law.

The Tribunal could not, for the first time in appeal, treat the bills of entry as provisionally assessed and on that basis reject the limitation plea under Section 28 of the Customs Act, 1962. Whether an assessment is provisional or final is a question of fact, and that factual basis was neither pleaded in the show cause notice nor decided in the order-in-original. The departmental case had proceeded on suppression and wilful misstatement under the proviso to Section 28(1), so the Tribunal introduced a new factual foundation not canvassed before the assessee. The rectification order did not cure the defect, and the matter was remanded for reconsideration on merits without reference to provisional assessment.

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Issues: Whether the Tribunal could, for the first time in appeal, hold that the assessments were provisional and on that basis negate the plea of limitation, when provisional assessment was neither pleaded in the show cause notice nor adjudicated in the order-in-original.

Analysis: The dispute before the departmental authorities proceeded on the footing that the duty demand was raised under the proviso to Section 28(1) of the Customs Act, 1962 on allegations of suppression and wilful misstatement. The Tribunal introduced a new factual basis by treating the bills of entry as provisionally assessed and by holding that limitation under Section 28 did not arise. Since whether an assessment is provisional or final is a question of fact, and since that issue was never part of the show cause notice or the original adjudication, the Tribunal could not sustain the Revenue's case on a ground not canvassed before the assessee. The rectification order also did not cure this error.

Conclusion: The Tribunal erred in raising and deciding the issue of provisional assessment suo motu, and its order was liable to be set aside. The substantial questions of law were answered in favour of the assessee, and the matter was remanded to the Tribunal for reconsideration on merits without reference to provisional assessment.

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