2006 (7) TMI 49 - AT - Service Tax

Service Tax ROM Amount of duty demand showed double in impugned order-Demand amount rectifiable Non-consideration of grounds of defence in impugned order Order issued taking into account totality of the circumstances No mistake apparent on the face of record -Plea of ROM not sustainable

Summary

Issues:
1. Error in the demand amount indicated in the Final Order
2. Consideration of important grounds in the Final Order
3. Applicability of the proviso to Section 28(1)
4. Finalization of provisional assessment
5. Mutually exclusive nature of provisional assessment under Section 18 and demand under Section 28(1) proviso

Analysis:

1. The first issue raised in the judgment pertains to an error in the demand amount indicated in the Final Order. The appellant pointed out that the demand of duty was incorrectly stated twice in the order, resulting in a double demand. The Tribunal accepted this error and rectified the demand amount to be shown only once, aligning with the actual quantified amount of Rs. 75,78,417.

2. The second issue revolves around the consideration of important grounds in the Final Order. The appellant argued that certain grounds were not addressed in the order, leading to an incomplete analysis. However, the Tribunal examined each ground raised by the appellant and provided a detailed response, ensuring that all relevant points were duly considered.

3. The third issue concerns the applicability of the proviso to Section 28(1) of the Customs Act. The Tribunal deliberated on whether the proviso was applicable in the case at hand, considering factors such as evidence of importer involvement in fraud and the finalization of provisional assessment by the Commissioner. The judgment emphasized the importance of protecting revenue interests and upheld the Commissioner's decision to finalize the assessment.

4. Another significant issue addressed in the judgment is the finalization of provisional assessment. The Tribunal analyzed the circumstances under which the provisional assessment was kept pending, including the discovery of forged DEPB scrips. It highlighted the Commissioner's responsibility to recover lost revenue and justified the order to finalize the assessment in the interest of the exchequer.

5. The final issue discussed in the judgment relates to the mutually exclusive nature of provisional assessment under Section 18 and demand under Section 28(1) proviso. The Tribunal agreed with the appellants on this point and explained that the Commissioner's decision to finalize the assessment was justified, considering the forged DEPB scrips and the duty liability of the appellants. The judgment emphasized the legality of the Commissioner's actions in recovering legitimate dues owed to the Government.

In conclusion, the judgment addressed various complex legal issues, including errors in the demand amount, consideration of important grounds, the proviso to Section 28(1), finalization of provisional assessment, and the mutually exclusive nature of provisional assessment and demand under Section 28(1) proviso. The Tribunal provided a detailed analysis of each issue, ensuring a comprehensive examination of the case and upholding the Commissioner's decision in the interest of revenue protection.