2017 (9) TMI 875 - AT - Central Excise

Concessional Rate of Duty - N/N. 26/1999-Cus. dated 28.02.1999 - imported as well as indigenous Kerosene used in the manufacture of Linear Alkyl Benzene (LAB) - provisional assessment - whether on the failure of the assessing authority in getting the full matter verified to his satisfaction before issuing final order, the Revenue can assert that the appellants deliberately mis-represented the facts to claim ineligible concession? - Held that - Apparently based on the documents on actual consumption, the percentage may vary. There is a mixed storage of indigenous as well as imported kerosene. The appellants followed accounting which is later found to be not acceptable to Revenue. The question is not about the correctness of the accounts. It is about verification to be done by the assessing authority before issuing speaking order on finalization of provisional assessment. The original authority had applied his mind and passed a speaking order. It is not open for starting a fresh proceeding without reviewing the said order for further appeal - appeal allowed - decided in favor of appellant.

Summary

Issues:
Challenge to proceedings initiated by show cause notices for re-calculation of concession under a customs notification.

Analysis:
The appellants, engaged in manufacturing Linear Alkyl Benzene using imported and indigenous kerosene, availed a concessional rate of duty under Notification No. 26/1999-Cus. for 15% of imported kerosene used for extracting paraffin. The assessment was provisionally done based on data submitted by the appellants, later finalized by the original authority. Revenue initiated proceedings via show cause notices alleging incorrect concession calculation. The appellants contested the proceedings' legality, citing finalization of provisional assessment in 2000 and the four-year delay in re-opening assessments. The Revenue argued that incorrect data provided by the appellants justified re-opening proceedings.

The Tribunal noted the provisional nature of assessments and the finalization based on data submitted by the appellants, accepted by the assessing authority in a quasi-judicial order. The Revenue's attempt to re-open assessments on grounds of suppression or misstatement was disputed. The Tribunal questioned whether the Revenue could claim deliberate misrepresentation by the appellants when the assessing authority failed to verify data thoroughly before finalizing the assessment. The issue was not the accuracy of accounts but the assessing authority's duty to verify before finalizing. Citing a precedent, the Tribunal emphasized that belated demands post-finalization of provisional assessments are untenable if the assessing officer failed to verify details adequately.

After considering the arguments, the Tribunal found the proceedings unsustainable, allowing the appeal on these grounds. The Tribunal's decision highlighted the importance of thorough verification before finalizing assessments and rejected the Revenue's attempt to re-open assessments based on alleged misrepresentation by the appellants.