TaxTMI 
TaxTMI 
TaxTMI 
2017 (5) TMI 1128
X X X X Extracts X X X X
X X X X Extracts X X X X
....gned order-in-appeal further says that "upon finalisation, the original adjudicating authority will readjudicate the case in the light of the investigation into the case..........". 2.1 The brief facts are that : (i) The appellant imported thermistors classifying the same under Customs Tariff Heading 85334030 and claiming benefit of 'Nil' duty under Notification No. 24/2005-Cus dated 1.3.2015 (Sl. No. 21) (ii) After examination, the Customs department was of the view that the goods are classifiable under CTH 84159000 as parts of auto air conditioner attracting duty @ 10%. (iii) The Bill of Entry was provisionally assessed, which was filed by the appellant on 17.9.2012. (iv) The department issued Show Cause Notice (SCN) dated 24.4.2014 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he following case laws: (i) Pramod Kumar Nathani Vs. Union of India - 2016 (34) ELT 642 (Cal.) (ii) AS Syndicate Warehousing Pvt. Ltd. Vs. CC - 2011 (267) ELT 46 (Ca.). (iii) Finolex Industries Ltd. Vs. CC, Mumbai - 2003 (159) ELT 949 (Tri.- Mum). (iv) International Computers Indian Manufacturers Ltd. Vs. Union of India - 1981 (8) ELT 632 (Del.). 6. Ld. Counsel for the Revenue however, vehemently submits that Revenue has issued show cause notice in order to finalise provisional asseseement and show cause notice can be issued under Section 28 of the Finance Act, as there is no other way than under Section 28 where Revenue proposed change of classification. In support, he cites following case laws: (a) Gujarat Narmada Valley Fertilizers....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hich the provisional assessment is being finalised so that the importer is able to respond to what is the proposal in 'finalisation of provisional assessment'. 7.3 Ld. Counsel for the Revenue submits that there cannot be issuance of two show cause notices for the same imports by the Revenue and the Revenue department by issue of present show cause notice wants to finalise earlier provisional assessment made for subject goods. On the other hand, ld. Counsel for the importer appellant submits that show cause notice did not mention that provisional assessment is being finalised by issue of show cause notice. The Hon'ble Gujarat High Court in the case of Gujarat Narmada Valley Fertilizers & Chem. Ltd. (GMVFCL) (supra), where in case of import ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... final assessment and payment of duties, it is found that there has been a short-levy or non-levy of duly, the Excise Officer is empowered to take proceedings under Section 11-A within the period of limitation after issuing a show cause notice. In such a case, limitation period will run from the date of the final assessment. The scope of Section 11A and Rule 173-I is quite different. In this case, the provisional assessment earlier made by the proper officer has been quashed and pursuant to the direction of the High Court, the proper officer has made the final assessment. No question of failure of issuance of show cause notice under section 11-A arises in this case. Even otherwise, we do not find any infirmity in the order of the Tribunal."....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 notice calls upon the petitioner show cause why the classification of the imported goods under Heading 2701 19 20 should not be rejected and why the same should not be re-classified under the Heading 2701 12 00 of the First Schedule to the Customs Tariff Act, 1975. Further proposals are only consequential in nature and includes proposal for adopting correct classification and quantifying the differential ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s to pay the same. At his request we leave such a question open for the petitioner to raise before the Commissioner and the Commissioner to decide the same if so raised by the petitioner. (Emphasis supplied) 7.5 By following Hon'ble Gujarat High Court's above decision in the case of GMVFCL and the observations made thereunder, I am of the considered view that the issuance of show cause notice for the present facts is legally valid recourse for 'finalisation of assessment' though it that may be that said wordings may not have been used in the show cause notice. The submission of the appellant in the light of the observations made in the Gujarat High Court decision (supra) do not have sufficient force. The case laws cited by the appellant a....