TaxTMI 
TaxTMI 
2004 (6) TMI 54
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....how cause notice issued was invalid on the ground that it has been issued prior to finalisation of the provisional assessment. Commissioner while ordering finalisation of the provisional assessment by the Assistant Commissioner of Central Excise directed the authority to intimate the Commissioner as and when the provisional assessment was finalized, so that the Commissioner can proceed with the adjudication on the basis of show cause notice. He also observed that direction given to the Assistant Commissioner is only an interim direction in the course of adjudication proceedings in respect of show cause notice without prejudice to any further orders which the adjudicating authority may pass subsequently. The above direction given by the Commissioner is also under challenge in these appeals. E/1793/96 & E/1794/96 : 3. These appeals are filed by ITC challenging the orders passed by the Commissioner of Central Excise against Order No. 6/96, dated 13-9-96 in respect of proceedings initiated under show cause notices dated 10/11-8-83 and 8-10-84. The period involved is 1-7-80 to 31-3-82 and 1-4-82 to 30-6-83. In the impugned orders also the Commissioner rejected the contention of th....
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....ons contained therein. Challenge against the above order is on the same ground as in Appeal No. E/1795/96, where the Order No. 5/96, dated 30-8-96 itself is sought to be set aside. Therefore, if Order No. 5/96 is held illegal, Order No. 38/2000 will have no legs to stand. E/2761 & 2762/2001-A : 6. These appeals are filed by Crown Tobacco Company and Masters Tobacco Company against Order No. 38/2000 of CCE, Delhi, dated 29-12-2000 on the same ground as in E/2760/2001-A, filed by ITC. E/1889/2002-A : 7. This appeal has been filed by the Revenue against Order No. 38/2000 of Commissioner of Central Excise, Delhi dated 29-12-2000 to the extent the Revenue is aggrieved by that order contending that additional consideration should be added to the value and not to the price and verification of quantification should have been done in consultation with the Departmental Officers. This appeal will also depend upon the legality of Order No. 5/96, dated 30-8-96. E/3083/2002-A : 8. This appeal is tiled by against Order dated 31-7-2002 passed by the Commissioner (Appeals) in an appeal filed by the Department against Order of Dy. Commissioner of Central Excise dated 22-9-2000. In ....
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....t Commissioner was pending in appeal before Commissioner (Appeals), Bangalore and that some of the issues raised therein were identical to those covered by the show cause notice dated 25-9-87. The above appeal was later disposed of by the Commissioner (Appeals) under order dated 20-11-99 setting aside the order impugned before him and remanding the matter for fresh consideration by the original authority. The proceedings remanded covered a period from 1-10-75 to 28-2-83 which would cover part of the period invoked in show cause notice dated 25-9-87. Therefore, request was made by the assessee to remand the proceedings before the Tribunal also to the original authority. The Revenue agreed to the above course of remand to the Assistant Commissioner for consideration of all issues raised in show cause notice dated 25-9-87 along with the de novo consideration of the provisional assessment as ordered by Commissioner (Appeals) in his order dated 20-11-99 except that portion of the show cause notice dated 25-9-87 relating to the imposition of penalty which aspect was required to be decided by the Commissioner, Delhi after the finalisation of provisional assessment by the Assistant Commiss....
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....ice alleging suppression and proposing imposition of penalty even after finalization of the provisional assessment. 14. After hearing both sides the Tribunal set aside the show cause notice dated 25-9-87 and Order-in-Original No. 4/96 passed pursuant to the show cause notice. The jurisdictional Assistant Commissioner was directed to finalize provisional assessment expeditiously. It was also held that the Revenue shall be at liberty to examine the issue of any short-levy, non-levy and consequent penalty liability only after finalization of the assessment as per law. In coming to the above conclusion the Bench had applied the ratio of the judgment of the Hon'ble High Court of Bombay in Union of India v. Godrej & Boyce Mfg. Co. Pvt. Ltd. which was confirmed by the Supreme Court in the order in SLP C. No. 12824/89 dated 8-3-90. In the above case it was held that since the show cause notice was based upon material which was the same as was concerned with the provisional assessment pending, the show cause notice was of dubious validity. It was further held that the relevant date for issue of such a show cause notice under Section 11A would be the date of adjustment of duty after f....
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....y on this count. The show cause notice was; therefore set aside and it was held that the Order-in-Original No. 4/96, dated 12-8-96 which was passed pursuant to the above show cause notice cannot survive. The Tribunal therefore held that the Revenue can use any material contained in the impugned notice as independent material to support the finalization of assessment, after making this material known to the appellants in writing and after considering their response thereto both in writing and on personal hearing. 17. It was on the basis of the above finding the Tribunal gave the following directions. (b) The Jurisdictional Assistant Commissioner is directed to expeditiously address himself to the finalisation of the provisional assessments as already detailed above; (c) In view of the aforesaid judicial decisions, we find that the Revenue shall be at liberty to examine the issue of any short levy, non-levy and consequent penal liability only after the finalisation of the assessment, etc. as per law. Civil Appeal No. 4166/2000 [2003 (154) E.L.T. 358 (S.C.)] filed by the Revenue against the decision of Chennai Bench was disposed of by the Hon'ble Supreme Co....
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....e grounds raised are the same as in Appeal E/1795/96-NB(A) where Order No. 5/96 itself is under challenge. Appeal E/2761/2001-A and E/2762/2001-A are filed by Crown Tobacco Co. and Master Tobacco Company against the very same Order No. 38/2000. Challenge is on the same ground as mentioned above. E/189/2002-A is filed by the Revenue against Order No. 38/2000 to the extent Revenue is aggrieved by a part of that order. 20. Order No. 5/96 and show cause notice dated 21-10-87 were challenged on the same ground on which Order No. 4/96 was challenged before the Chennai Bench. We follow the ratio of the decision by Chennai Bench and set aside the show cause notice dated 21-10-87 and Order No. 5/96, dated 30-8-96. In the light of the above, Order No. 38/2000, dated 29-12-2000 passed by the Commissioner of Central Excise, Delhi has also to be set aside and we do so. The Jurisdictional Assistant Commissioner will finalise the provisional assessment expeditiously. The Revenue can utilise any material contained in the impugned notice as independent material to support the finalisation of assessment after making the material available to the assessee in writing and after considering their res....