2009 (6) TMI 557

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....necessary to consider all those grounds. We consider only one ground viz, failure on the part of the authorities to comply with the provisions of law before proceeding to take steps to recover the alleged short levy. 2. The appellants have set up a power generation plant based on a Non-conventional energy source at Sri Ganganagar, Rajasthan and for that purpose the appellants imported a Steam Turbine vide Bill of Entry dated 19-2-2003, under Project Imports, and the Bill of Entry was provisionally assessed under Heading No. 98.01 and the same was sought to be finalised on 25-2-2004. The provisional assessment was resorted for the purpose of seeking post importation evidence of installation of the said goods at the site and was finalized ....

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....by the same, the appellants preferred an appeal before the Commissioner (Appeals) which came to be rejected by the impugned order. Hence the present appeal. 3. It is the contention on behalf of the appellants that in order to initiate action for recovery of less charge duty, appropriate proceedings in terms of Sec. 28 of the Customs Act are required to be initiated, without which the Department is not entitled to proceed for recovery of such duty. In that regard, attention is also drawn to the decision of the Bombay High Court in the matter of Bajaj Auto Limited v. Union of India reported in 2003 (151) E.L.T. 23 (Bom.) and also of the decision of the Tribunal in the matter of Fibro Plast Corporation v. Commissioner of Customs, Nhava Shev....

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....ase the order passed by the lower authority happens to be unsustainable, the Commissioner (Appeals) while setting aside such order can proceed to re-adjudicate the issue involved and decide the matter finally. 6. It is rightly submitted by the ld. advocate that the order dated 29-12-08 nowhere discloses any efforts on the part of the Commissioner (Appeals) to finalise the assessment once having set aside the order of final assessment passed by the lower authority. Considering the provisions of Sec. 128A as amended, it was the duty of the Commissioner to pass an appropriate order in that regard. In the absence thereof, we fail to understand how steps can be taken by the Department directly under Sec. 28 by issuing notice in the manner it ....