TaxTMI 
TaxTMI 
2002 (3) TMI 102
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....against Order-in-Appeal, dtd. 30-8-2000 by observing :- "4. The Commissioner (Appeals)'s order is not maintainable for more than one reason. Firstly, it was his duty to give the appellant before him a reasonable opportunity by being heard before coming to his conclusion. Secondly, his conclusion that he could not hear the appeal because it was already pending in the Chennai Tribunal is incorrect. The notices that were adjudicated by the Assistant Commissioner did not demand duty, but merely proposed classification of the commodity. The appellant was therefore entitled to question before the Commissioner (Appeals) at Bangalore the validity of the demand of duty and to say that the demand did not flow from the proceedings commenced b....
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....2 returns have been subject to the outcome of Court cases in respect of BMS. It is consequent to decision of the Writ Petition and the appeal filed before Commissioner (Appeals) the Superintendent has issued the demand letter. In the case of M.P. Steel Corporation, Hon'ble Tribunal in the decision reported in 1999 (112) E.L.T. 331 (T) has categorically held that appeals against the assessment order passed by the Superintendent of Central Excise on the basis of decision of the Commissioner/Collector lies to Tribunal and not to Collector (Appeals)." Accordingly he dismissed the appeal as unsustainable. (b) The appellants have submitted :- "(1) The Commissioner (Appeals) has totally misconstrued the CEGAT's decision in MP Steel ....
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....appellants, the facts are clearly different. The order of the Commissioner (Appeals) pending in appeal before CEGAT SZB is only regarding the classification of BMS. There is no consequential demand of duty raised and confirmed in that case as a result of finalisation of classification. In fact the appellants main contention is that no Show Cause Notice demanding differential duty was raised by the department at any point of time. Hence, the letter dated 24-6-99 of the Superintendent of Central Excise is an independent decision to demand duty. Therefore, appeal against the same lies before Commissioner (Appeals) only. (4) Therefore, the reliance placed by Commissioner (Appeals) on the decision of CEGAT in the case of M.P. Steel Corp....
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.... substitution dt. 20-11-1996 by Notification 36/96-C.E. (N.T.), has held in para 10 of the reported decision, "that duty has to be paid as per the assessment within 10 days from the receipt of the return, no question of Section 11A notice would arise in such cases. However, the same should be done within the time limitation to run from date of final assessment." If the case is, as made out here by Revenue of final assessment, Section 11A, should have been resorted within six months of return of the final assessed RT 12s by issue of demand notice answerable to the Assistant Collector. The justification of a demand of 'short levy/non-levy' on basis of the simple letter, dtd. 24-6-99, cannot be upheld by us, in view of the law as laid down by ....
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....20-11-96, are not required to be assessed, by a Superintendent in view of Notfn. 36/96-C.E. (N.T.). The order of Commissioner (Appeals), as based on incorrect appreciation of facts and law on this account and also the letter dtd. 24-6-99 issued, and the Commissioner (Appeals) order is required to be set aside. (d) The appellants have pleaded that the assessments were not provisional and were final. The demands thus were barred by limitation. We find, that even if it is considered that removals under Chapter VIIA pending the final approval of Classification or Price List will be deemed to be provisional, as held in Samrat International (P) Ltd. v. Collector by the Apex Court [1992 (58) E.L.T. 561 (S.C.)], then the proper officer to ....