2014 (11) TMI 617 - HC - Central Excise

Validity of Tribunal s order - Provisional assessment or not - Whether the Tribunal can suo motu (after hearing has been completed) come to a conclusion that there had been provisional assessment of the impugned goods, even while such an averment did not appear in the show cause notice or in the Order-in-Original or at the time of hearing - Held that - The issue whether the assessment is provisional or final is a pure question of fact. That was not the issue raised in the show cause notice or in the Order-in-Original of the Commissioner. The Tribunal states that learned Department representative does not aver that the goods were finally assessed. This cannot be correct as the show cause notice issued under Section 28(1) of the Act invoking extended period goes on the premise that assessment is final and the importer does not deny it to plead a case of no suppression or misstatement. We, therefore, find that the Tribunal has misdirected itself to consider the issue on a total new plea, which was not canvassed by the Revenue in the show cause notice. That apart, the Commissioner was not called upon to adjudicate on that issue as to whether the assessment is provisional or otherwise. We find that the Tribunal erred in considering such new plea and coming to the conclusion that there was no case of misstatement or suppression. The order of the Tribunal, in the light of the law laid down in the decisions of the Supreme Court, referred supra, requires to be rectified. - Matter remanded back - Decided in favour of assessee.

Issues Involved:
1. Whether the Tribunal can go beyond the scope of the show cause notice and the Order-in-Original to hold that there had been provisional assessment.
2. Whether the Tribunal can suo motu conclude that there had been provisional assessment of the impugned goods.
3. Whether the Tribunal was correct in rejecting the application for rectification of mistake apparent on the face of its final order.
4. Whether the Tribunal can reject the plea regarding provisional assessment on the grounds of limitation.

Detailed Analysis:

Issue 1: Scope of the Show Cause Notice
The appellant argued that the Tribunal exceeded its jurisdiction by holding that the assessments were provisional, a point not raised in the show cause notice or the Order-in-Original. The High Court agreed, referencing the Supreme Court's decision in SACI Allied Products Ltd. v. Commissioner of Central Excise, Meerut, which held that the Tribunal cannot go beyond the show cause notice and the order of the Original Authority. Thus, the Tribunal's action of introducing the provisional assessment issue was deemed improper.

Issue 2: Suo Motu Conclusion on Provisional Assessment
The Tribunal, after the hearing, concluded that the assessments were provisional, which was not a point of contention during the proceedings. The High Court found this to be an error, emphasizing that whether the assessment was provisional or final is a pure question of fact. This issue was neither raised by the Department nor by the importer, making the Tribunal's conclusion on this matter inappropriate.

Issue 3: Rejection of Rectification Application
The appellant's application for rectification of the Tribunal's order was dismissed. The Tribunal justified its dismissal by stating that it was within its realm to determine whether the assessments were provisional, given the serious plea of limitation raised by the assessee. The High Court, however, found that the Tribunal erred in considering a new plea not raised by the Revenue, thus rejecting the Tribunal's rationale for dismissing the rectification application.

Issue 4: Plea Regarding Provisional Assessment and Limitation
The Tribunal held that since the assessments were provisional, the limitation under Section 28 of the Customs Act did not apply. The High Court disagreed, stating that the Tribunal's new finding was not supported by the show cause notice or the Order-in-Original. The Court reiterated that the Tribunal should not have introduced the issue of provisional assessment, especially when it was not part of the original proceedings.

Conclusion:
The High Court allowed the appeal by way of remand, directing the Tribunal to reconsider the issues on merits without reference to the provisional assessment. The Tribunal was instructed to adhere strictly to the issues raised in the show cause notice and the Order-in-Original, and the assessee was permitted to canvass all issues on merits. The High Court emphasized the importance of staying within the bounds of the original proceedings and not introducing new factual determinations not previously raised.

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