TaxTMI 
TaxTMI 
TaxTMI 
2000 (1) TMI 744
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.... gist of which was that the Jurisdictional Assistant Commissioner of Central Excise was to finalise the pending provisional assessment as per law for the period noted above and had ordered that this finalisation of provisional assessment should be completed as expeditiously as possible. 3. While the present appellant had no quarrel with this direction, the subsequent paragraphs of the said Order-in-Original impugned have raised dispute which is before us. In Para (iv) the ld. Commissioner has directed that as soon as the competent authority completes the finalisation of the said provisional assessment, the Commissioner should be informed of this position so that he can continue to proceed with adjudication on this show cause notice dated 25-9-87. 4. This order was passed in view of the ld. Commissioner's finding in Para (i) of the order impugned that the contention of the noticees that since the show cause notice had been issued during the pendency of the provisional assessment, it was not sustainable in law, was not acceptable to him. 5. In Para (iv) the ld. Commissioner further clarified that the direction contained in this sub-para of the order was merely an in....
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.... by the ld. Commissioner of Central Excise, New Delhi in continuation with the Order-in-OriginaI impugned before us was stayed. With respect to the appeal pending before the Commissioner (Appeals), Bangalore, we had observed that either side was at liberty to move the said Commissioner (Appeals), Bangalore for an early hearing in the matter. 10. Thereafter, though this appeal was posted for hearing before us on many occasions, the same had been adjourned on request from either side from time to time. This was particularly in view of the fact that the Govt. had reported to us that they were actively considering a solution to this problem which would obviate such multiplicity of proceedings. 11. Vide our Miscellaneous order No. 727/99 dated 3-8-99 we had further heard this appeal wherein it had been submitted that it would be practical and to the advantage of both sides if a final decision in this appeal before us is deferred till the ld. Commissioner (Appeals), Bangalore considers and issues in his Order-in-Appeal on the appeal pending before him. We had accepted this submission. 12. The ld. Commissioner (Appeals), Bangalore has since reportedly finalised his decis....
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....urisdictional Assistant Commissioner of Central Excise for finalisation of the provisional assessment on all counts. Ld. Sr. Advocate submits that the net effect of this prayer would be that the said Jurisdictional Assistant Commissioner shall be seized of the entire matter of assessment of the Cigarettes for the period noted above in view of the same being remanded to him from two sources namely this Tribunal and the Commissioner of Central Excise (Appeals), Bangalore, as noted above. Once the said Jurisdictional Assistant Commissioner finalises the provisional assessment on all counts, the multiplicity of litigations feared earlier would not arise any more in as much as either side would then be at liberty to seek appellate remedies in case of grievances. 14.  Ld. D.R. has filed a memo in the Court today for submission of certain documents in this connection by Revenue. The said memo informs us that the matter had been considered by the Central Board of Excise & Customs and consequent thereto, the Office of the Commissioner of Central Excise, Bangalore had instructed the ld. D.R. vide their letter dated 12-1-2000 which the ld. D.R. seeks to bring before us by this memorandu....
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....r the Act and the Rules. Ld. D.R. submits that in case the issue of finalisation of provisional assessment is sent back to the Jurisdictional Assistant Commissioner, the question of adjudicating upon the allegations regarding suppression of facts, etc. for which there was a penal liability under the law would still remain open. In this connection, he submits that the same should be allowed to be adjudicated by the designated authority of Commissioner of Central Excise, New Delhi. This was for two reasons: Firstly, the Jurisdictional Assistant Commissioner of Central Excise who will be required to finalise the provisional assessment would not have the legal jurisdiction to consider charges and allegations of suppression leading to penal liability and secondly, even if he has such a jurisdiction, the quantum of penalty leviable by him may not be commensurate to the expectations of Revenue. Therefore, he submits that either the Commissioner of Central Excise designated authority at New Delhi or the jurisdictional Commissioner of Central Excise, Bangalore should be allowed to proceed with consideration of those allegations leading to penal liability determination under law or the Reven....
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....sdictional Assistant Commissioner to finalise them in line with the orders of the Hon'ble High Court of Karnataka. Therefore, it follows that the show cause notice dated 25-9-87 was itself issued without authority of law. If that be so, ld. Sr. Advocate submits, then the attendant Order-in-Original impugned shall also be liable to be set aside as it had adjudicated the said show cause notice. He further reiterates his earlier submissions that once the ld. Commissioner of Central Excise, Delhi had passed the order impugned, he had become functus officio and therefore he could not have proceeded to further adjudicate in continuation thereof as ordered by him. He also reiterated his submission that because the demand for duty contained in the show cause notice was connected with finalisation of provisional assessment at the Assistant Commissioner's level, therefore by reserving a right to further adjudicate upon the show cause notice, the executive Commissioner of Central Excise, New Delhi had in fact assumed upon himself the powers of an Appellate Authority. Sr. Advocate further submits that the question of applicability of Rule 9(2) in these circumstances does not arise as the asses....
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....ows:- (i) Whether the show cause notice in question survives or is issued without authority of law? (ii) Whether the Order-in-Original is required to be set aside and (iii) Suitable directions regarding finalisation of the provisional assessments for the entire period by the Jurisdictional Assistant Commissioner. 21. Since the question of legal propriety of issue of show cause notice by Revenue while provisional assessment were still admittedly pending is central answer to either question, therefore we consider this issue first. In this connection, we find that the matter is no longer res integra, but is covered by decisions of the various Courts and Tribunals as is noted above. In the case of U.O.I. v. Godrej & Boyce Manufacturing Co. P. Ltd., the Hon'ble High Court at Bombay had held that since the show cause notice was based upon material which was the same as was concerned with the provisional assessment pending, therefore the show cause notice was of dubious validity. It had further held that the relevant date for issue of such a show cause notice under Section 11A would be the date of adjustment ....
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....enal proceedings under this show cause notice could continue to be adjudicated upon by the Commissioner of Central Excise, Delhi after the provisional assessments are finalised. The law in this regard laid down by the Hon'ble Apex Court in the aforesaid two decisions is to the contrary. It is now well settled that while Revenue had the right under law to issue a fresh show cause notice under Section 11A etc., after considering the results of the finalisation of the assessments, the present show cause notice dated 25-9-87 having been issued before such finalisation of assessment, would be, according to us, bad in law. 23. In case of Nayek Paper Industries Pvt. Ltd. v. U.O.I (supra), the Hon'ble High Court at Calcutta had held similarly that a demand raised before finalisation of assessments would not be proper as the cause of action under Section 11A would arise only from the date of adjustment of duty finally assessed and not earlier, and therefore, no show cause notice under Section 11A could be issued prior to this event. Applying respectfully the ratio of this judgments, we find that the present show cause notice has been issued pre-maturely and that it could not have been....
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....ding shall be attended to expeditiously by the jurisdictional Assistant Commissioner concerned. We also clarify that in terms of the decisions noted above, the said jurisdictional Assistant Commissioner shall have the liberty to use all the material, evidences, etc. which were available to Revenue in the show cause notice dated 25-9-87 while proposing finalisation of the provisional assessment provided the said Assistant Commissioner brings all these to the notice of the present appellants in writing and then also considers their submission thereupon both in writing as well as during personal hearing. He shall thereupon, after a detailed consideration of these, proceed to pass a speaking order under Rule 9(b)(5) finalising the assessments on all counts for the period under dispute as noted above. While doing so, he shall also comply with the orders of the Commissioner (Appeals), Central Excise, Bangalore which would merge with each other. With respect to the prayer of ld. D.R. regarding invokation of Rule 6, we submit that this is a matter which can be decided upon by Revenue at the appropriate time. It does not require any direction from us. At this point, ld. Sr. Advocate submits....