1998 (2) TMI 350 - AT - Central Excise

Tribunal rules show cause notice premature, remands for new assessment

The tribunal found in favor of the appellant, ruling that the show cause notice for duty recovery due to provisional assessments was premature. The ... Demand - Provisional assessment Issues:Prematurity of show cause notice for duty recovery due to provisional assessments.Analysis:The judgment revolves around the issue of the prematurity of a show cause notice proposing recovery of duty due to provisional assessments made by the lower authorities. The appellant's senior advocate argued that the show cause notice was premature as the assessments were provisional, citing a previous tribunal order. The advocate pointed out that the appellant had now obtained an order from the Superintendent of Central Excise confirming that the assessments were indeed provisional. Relying on various case laws, the advocate requested the quashing of the show cause notice and the impugned order due to the provisional nature of the assessments.The respondent, representing the Commissioner, acknowledged that the assessments were provisional but argued that the show cause notice was issued to finalize the valuation aspect, which was a technical point. The respondent contended that the Department had discovered short-payment during valuation and needed the Tribunal to resolve the matter. The respondent opposed the idea of setting aside the show cause notice based on the submissions made by the appellant's advocate.After considering both sides' arguments, the tribunal found merit in the appellant's submissions that the show cause notice was premature. The tribunal observed that the show cause notice did not mention finalizing the valuation aspect of the provisional assessments, indicating a direct proposal for recovering differential duty. Consequently, the tribunal set aside the show cause notice and remanded the matter to the Assistant Commissioner of Central Excise to issue a new show cause notice for deciding all pending provisional assessments, including any other issues related to provisional assessments. The tribunal clarified that all pleas would be open before the adjudicating authority, and the impugned order was set aside, allowing the appeal by way of remand as per the directions provided.