2019 (2) TMI 1228

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....they paid excess customs duty during the provisional assessment of the Bills of Entry for warehousing and the said Bills of Entry had been finally assessed resulting into refund. Show cause notice dated 30.06.2009 was issued to the appellant seeking to appropriate the unpaid interest of Rs. 53,96,228/- from the said refund. The matter was adjudicated by the Assistant Commissioner, he sanctioned the refund of Rs. 90,11,986/- but appropriated Rs. 53,96,228/- on account of unpaid interest. Being aggrieved by the impugned order, the appellant filed appeal before the Commissioner (Appeals) who allowed the appeal. Therefore, the revenue is in appeal. 2. Shri Amit Kumar Mishra, Ld. Jt. Commissioner (AR) appearing on behalf of the Revenue submits ....

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....ave been finalized. However, the very same demand of interest has been set-aside by the Tribunal even against the provisional assessment of Bills of Entry and since the department has not challenged the Tribunal's order, the same attained finality. Since the show cause notice for the demand had already been issued and the same was held to be time-barred by the Tribunal, for the same demand, second show cause notice is bad in law and is illegal. Therefore, the demand in the show cause notice in the present case itself is illegal. The ld. Commissioner (Appeals) has given detailed findings for setting aside the demand of interest in the impugned order which is reproduced:- "5. I have carefully gone through records of the case as well as submi....

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....ing the amount of interest paid by the appellant, as mentioned above, the episode should have legally and logically ended at this point of time. However, surprisingly, the Asstt. Commr, Central Excise & Customs, Div IV, Vadodara -I, almost after two years of the CESTAT's order, raised a demand of interest of Rs. 53,96,228/- vide SCN No. V.Misc.(18)94/lOCL/Cus./Ref/09-10 dtd. 30-06-2000, which was already held time barred by the Tribunal as mentioned above. 5.1.3. To ascertain the correctness of the appellants contention, the Asst, Commr., C. Ex. & Cus., Div. IV. Vadodara-l has directed to comment on the contention of the appellant. vide letter dtd, 27-01-11. The latter, vide letter dtd. 1 7-02-11, informed that the demand of interest in di....

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.... Sungowd Ltd. reported vide 2010-TIOL-1064-CESTAT-Madras, wherein it is held that once assessment is provisional, it is provisional far nil purposes. The comments from the JAC also does not convey the grounds for resorting to a provisional assessment, whether it was for duty, classification or for interest. However, at the same time, it is also a matter of fact that there has been an order of the Tribunal, holding the demand of interest time barred. There are various case laws holding that the order of the Tribunal, once accepted by the department attains finality and that matter can not be reopened by the deptt. Had the department filed an appeal against the order of CESTAT, the matter could have remained alive. But, in the facts and circu....