TaxTMI 
TaxTMI 
2016 (3) TMI 700
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....tion of the assessment was challenged by revenue before the Commissioner (Appeals) by the Revenue on the ground that the benefit of Notification No.6/2002-CE dated 01/03/2002 is not available to the appellant. This was alleged on the basis of the ratio of this Tribunal judgement in the case of Triveni Engineering & Industries Ltd., - 2004 (172) ELT 353. The appellant challenged the review on the grounds that the review is time barred as the order dated 09/02/2005 passed by the Commissioner under Section 129D (ii) is beyond six months from 25/02/2004, i.e. the date of finalisation of provisional assessment. It was argued that Section 129D of the Customs Act, requires the review of any order as far as possible within a period of six months from the relevant date. It was also argued that benefit of Notification No.6/2002 is available to them. It was argued that so far as the assessment of CVD is concerned the same not provisional but final. It was argued that the assessment was provisional only for the purpose of verification of post import declaration in the final setting of the project. The Commissioner (Appeals) vide order dated 05/08/2005 allowed the appeal of the revenue without ....
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....ssistant Commissioner vide order dated 09/05/2008. It was held that since there is no stay from the CESTAT against the said order of Commissioner (Appeals) dated 05/08/2005 the order of confirmation of duty of adjudicating authority was proper. There is no discussion in the order on the other issues raised by the appellant in their appeal. The appellant challenged the said order-in-appeal before Tribunal. The Tribunal vide orders dated 26/04/2009 held as follows: "5. The records, undoubtedly disclose that the bill of entry dated 19/02/2003 was finally assessed on 25/02/2004. However, the same was subjected to the appeal filed by the department. The Commissioner (Appeals) has set aside the order of the final assessment. The order passed by the Commissioner (Appeals) in that regard clearly read thus:- "Hence the assessment order of the lower authority is set aside, and the department's appeal is allowed". It is pertinent to note that after setting aside the order of the final assessment, the Commissioner (Appeals) did not issue any further directions in order to proceed to finally assess the Bill of Entry in exercise of the powers under Section 128A as amen....
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.... 29/12/2008 and 24/06/2009 has stayed the order in appeal No.1007/08 AM(I) 420 (AC/GR.VI)/2008 (JNCH) dated 29/12/2008 in F.No.S/49-383/2008 Misc JNCH and further observed that it was the duty of the Commissioner (Appeals) to pass an appropriate order. I, therefore, pass a final order on the subject issue". The Commissioner (Appeals) observed that the Tribunal has in its order dated 24/06/2009 observed that it was the duty of Commissioner to pass an appropriate order for finalisation of assessment in accordance with the law. The Commissioner (Appeals) thereafter denied the benefit of Notification No.6/2002 and upheld the order-in-original dated 09/05/2008 demanding duty passed by the Assistant Commissioner of Customs. The appellants are in appeal against the said order of Commissioner (Appeals). 4. Learned Counsel for the appellant argued that the impugned order-in-appeal has been issued without jurisdiction. It was argued that the order of Tribunal dated 24/06/2009 was passed in respect of the order-in-appeal dated 29/12/2008 confirming the demand. It was argued that the order dated 24/06/2009 passed by this Tribunal did not remand the matter for fresh adjudication. Therefor....
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.... the issue of finalisation of provisional assessment and availability of exemption under notification No.6/2002 is still pending before the Tribunal in Appeal No.C/1368/05. In these circumstances, the order of Tribunal dated 24/06/2009 under no circumstances be treated as a order of remand with a direction to finalise the assessment of the bill of entry. It is seen that observation of Tribunal in para 5 reads as follows: "The records, undoubtedly disclose that the bill of entry dated 19/02/2003 was finally assessed on 25/02/2004. However, the same was subjected to the appeal filed by the department. The Commissioner (Appeals) has set aside the order of the final assessment. The order passed by the Commissioner (Appeals) in that regard clearly read thus:- "Hence the assessment order of the lower authority is set aside, and the departments appeal is allowed". It is pertinent to note that after setting aside the order of the final assessment, the Commissioner (Appeals) did not issue any further directions in order to proceed to finally assess the Bill of Entry in exercise of the powers under Section 128A as amended with effect from 11/05/2001. It is now settled l....