2002 (11) TMI 449 - AT - Customs

Summary

Issues:
- Maintainability of an appeal under Section 128 of the Customs Act, 1962 against provisional assessment.

Analysis:
The main issue in this case was whether an appeal is maintainable under Section 128 of the Customs Act, 1962 against provisional assessment. The Commissioner of Customs (Appeals) had dismissed appeals as premature, stating that such appeals were not maintainable. The appellants argued that Section 128 of the Customs Act clearly allows for appeals from provisional assessments, similar to provisions under Section 35 of the Central Excise Act, 1944. They cited various decisions in support of their contention, while the Departmental Representative highlighted conflicting views from other Tribunal decisions.

In the judgment, reference was made to the decision in Indian Aluminium Cable Limited, where reliance was placed on a Gujarat High Court decision regarding appeals from provisional assessments under Rule 9B of the Central Excise Rules, 1944. The Gujarat High Court had upheld the constitutional validity of certain provisions and recognized the right of appeal against refusal of provisional assessment. Additionally, a decision of the Orissa High Court was cited, which stated that challenges to provisional assessments in writ petitions were not entertained due to the availability of an alternative remedy through appeals.

Considering the conflicting views from different Tribunal benches, the Tribunal decided not to refer the matter to a Larger Bench. Instead, they accepted the appellants' contention that appeals under Section 35 would be maintainable from provisional assessments under Rule 9B, based on the Orissa High Court decision and observations from the Gujarat High Court. The impugned orders were set aside, and the matter was sent back to the Adjudicating Authority to finalize the assessments within a specified period of three months.

In conclusion, the appeals were allowed, and the Tribunal directed the Adjudicating Authority to complete the pending provisional assessments within three months. The judgment clarified the maintainability of appeals from provisional assessments under the Customs Act, emphasizing the availability of such remedies for aggrieved parties.