2018 (9) TMI 644 - HC - Central Excise

Provisional assessment finalized or not? - Whether the CESTAT was right in holding that the assessment was provisional and was not finalized for the relevant period? - Held that - The impugned order of the Tribunal on the basis of the record available before it, and on the appreciation of the same, has rendered a finding of fact that the Assessment during the relevant period were provisional. This finding of fact is not shown to be perverse in any manner. On the available facts, the view taken by the impugned order of the Tribunal is a possible view - this being a question of fact which is not shown to be perverse, would not give rise to any substantial question of law. Thus not entertained. Penalty - Held that - Revenue, having specifically stated that the Revenue does not agitate the issue of penalty not being imposable even when the Assessment is provisional, renders the question academic in the present facts. Thus, not entertained. Appeal dismissed - decided against appellant.

Summary

Issues:
1. Whether the assessment was provisional and not finalized for the relevant period?
2. Whether the penalty imposed on the Respondent should be set aside due to the provisional nature of the assessment?

Analysis:

Issue 1:
The appeal challenges the order of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) regarding the provisional nature of the assessment. The Commissioner of Central Excise confirmed a demand and penalty under Rule 173Q of the Central Excise Rules, 1944. Both the Revenue and Respondent appealed to the Tribunal, with the Respondent arguing against the penalty for provisional assessments, while the Revenue sought confiscation as proposed in the show cause notice. The Tribunal found that the assessments were provisional based on examination of facts, stating that if assessments were finalized, records would be available with the Department. The Tribunal concluded that no penalty or confiscation was warranted for provisional assessments. The Revenue contended that the assessments were not provisional, but the Tribunal's finding was upheld as a possible view based on the available facts, leading to the dismissal of the appeal.

Issue 2:
The second issue pertained to the penalty imposed on the Respondent. The Tribunal's order was based on the provisional nature of the assessments, and the Revenue did not challenge the non-imposability of the penalty for provisional assessments. As a result, the second question was deemed academic and not entertained. The appeal was ultimately dismissed based on the findings regarding the provisional nature of the assessments and the non-imposability of penalties in such cases. The judgment emphasized that the assessment being provisional precluded the imposition of penalties or confiscation, leading to the dismissal of the appeal.

In conclusion, the High Court upheld the Tribunal's decision, emphasizing the provisional nature of the assessments and the corresponding lack of grounds for penalties or confiscation. The issues raised by the Revenue were not deemed substantial questions of law, leading to the dismissal of the appeal.