TaxTMI 
TaxTMI 
2014 (2) TMI 730
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.... insisted on collecting higher rate of duty treating the imported coal as bituminous coal and provisionally releasing it on such condition. It is stated at the bar that subsequently, pursuant to DRI inquiry, for the consignment cleared at Kandla Port also, the petitioner was required to deposit differential duty, of course, on provisional basis subject to final assessment. Be that at it may, in the present petition what is under challenge is the show cause notice dated 7th October 2013 issued by the Commissioner. In such show cause notice, the Commissioner has given details why the department, prima facie contends that imported coal is bituminous coal and not steam coal. On such basis, the Commissioner called upon the petitioner to show cause why : "24. Now, therefore, M/s.Gujarat Narmada Valley Fertilizers & Chemicals Limited, P.O. Narmadanagar - 392015, Dist. Bharuch, Gujarat, holder of the Import-Export Code Number 0888000685 are called upon to show cause to the Commissioner of Customs, Customs House, Near Balaji Temple, Kandla-370210, as to why :- (i) Their claim for classification of impugned goods (as detailed in Annexure-B to this Notice) unde....
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....ssification must be first completed under section 18 of the Customs Act, 1962 and only thereafter, any duty demand under section 28 of the said Act could arise. We may record that with respect to the central controversy between the parties, namely, whether the coal imported is bituminous coal or steam coal, the petitioner has not raised any contentions before us. Even otherwise, we notice that two previous importers under similar circumstances had challenged the show cause notices, in which in our two separate orders both dated 9.5.2013 passed in Special Civil Application Nos.7228 of 2013 and 8659 of 2013, we had refused to interfere holding that at the show cause notice stage, it would not be appropriate for us to examine the highly disputed questions of facts and law. In one such order, we had observed as under: "4. We are, however, of the opinion that the challenge of the petitioner being at the stage where mere show-cause notice has been issued by the department, at this stage no interference is called for. It is by now well settled that the court would not encourage litigation at the stage of show cause notice. The noticee would have sufficient opportunity t....
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.... the petition. The Supreme Court in appeal held and observed as under: 2. .... ....The High Court proceeded on the basis that the appellate order had become final and expressing agreements with the same, quashed the notice. The argument on behalf of the appellant is that if the view of the High Court is correct a classification cannot be reviewed and any such classification once made cannot be reviewed even if the earlier view is erroneous, and such a course would result in great loss of revenue was not accepted and allowed their petition and quashed the show cause notice. Hence this appeal. 3. The matter relating to commodity classification whether it falls under one heading or the other or attracts higher or lower duty has to be decided on facts arising in each case. Even though, the decision may have been taken earlier at one point of time but on further investigation discover new fact or the law has changed, as is the stand in the present case, the matter has to be re-examined. It is not at all proper for the High Court to interfere in such matters at the stage of issue of the show cause notice. We,....
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....cise matters and hence may not be appropriate for the writ court to entertain a petition under Article 226 of the Constitution. Therefore, the learned Single Judge was justified in observing that since the assessee has a remedy in the form of a right of appeal under the statute, that remedy must be exhausted first, the order passed by the learned Single Judge, in our opinion, ought not to have been interfered with by the Division Bench of the High Court in the appeal filed by the respondent/assessee." 6. 8. In view of the above discussion, when several questions of facts are involved, and in particular, when the petitioner has neither contended nor established any inherent lack of jurisdiction or gross violation of principles of natural justice on the part of the adjudicating authority, the petition which is directed against the show cause notice is rejected." Learned counsel Shri Trivedi for the petitioner, however submitted that in the present case the petitioner has raised a contention not previously raised by the other importers namely that there has been no finalization of the provisional assessment and that therefore, no duty demand could have been raised. ....
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....n therein are satisfied, viz. where the assessee is found to be unable to produce any document or furnish any information necessary for assessment of duty on any excisable goods. It was, therefore, observed that: "24. Whereas provisional duty is levied in terms of sub-rule (1) of Rule 9-B, final assessment is contemplated under sub- rule (5) thereof by reason of which the duty provisionally assessed shall be adjusted against the duty finally assessed and in event the duty provisionally assessed falls short of or is in excess of the duty finally assessed, the assessee will pay the deficiency or will be entitled to a refund, as the case may be. Ultimately, thus, the liability of the assessee would depend upon the undertaking of exercise by the assessing Officer to compete the assessment proceeding as contemplated under the Rules." In the present case, facts are substantially different. The notice as reproduced hereinabove, first and foremost proposes to adopt certain classification which, in the opinion of the department, would be correct for the imported goods rejecting the classification canvassed by the petitioner. It is in this context that in para 24(1) of the....