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2016 (3) TMI 700 - AT - CustomsValidity of Commissioner (Appeals) order - Finalisation of assessment - Held that - The Commissioner (Appeal) has given his finding on the issue of provisional assessment vide order dated 05/08/2005 and the appellants have challenged before the Tribunal and the same is still pending. The Commissioner (Appeals) has no jurisdiction to go into the same issue himself. The order of Commissioner (Appeals) is clearly without jurisdiction and is therefore, set aside. Availability of Notification No. 6/2002-CE dated 01.03.2002 - Import of Steam Turbine - Held that - by applying the decision of Hon ble Supreme Court in the case of Triveni Engineering & Industries Ltd. Versus Commissioner 2015 (4) TMI 1078 - SUPREME COURT , the benefit of Notification No.6/2002-CE is not available to steam turbine. - Appeal dismissed
Issues Involved:
1. Classification of imported steam turbine under heading 98.01 of the Customs Tariff. 2. Availability of benefit under Notification No.6/2002-CE dated 01/03/2002. 3. Timeliness of the review under Section 129D of the Customs Act. 4. Validity of the demand notice issued under Section 28 of the Customs Act. 5. Jurisdiction of the Commissioner (Appeals) to adjudicate the matter. Issue-wise Detailed Analysis: 1. Classification of Imported Steam Turbine: The appellants filed a bill of entry for the import of a steam turbine, claiming it to be classifiable as a project import under heading 98.01 of the Customs Tariff. The initial assessment was provisional, but it was finalized by the Assistant Commissioner on 26/02/2004. The Commissioner (Appeals) set aside this final assessment without issuing further directions for final assessment, which was a procedural lapse as per Section 128A. 2. Availability of Benefit under Notification No.6/2002-CE: The appellants claimed the benefit of Notification No.6/2002-CE for the imported steam turbine. The revenue contested this claim based on the Tribunal's judgment in Triveni Engineering & Industries Ltd., which was later upheld by the Supreme Court. Consequently, the benefit of the notification was denied. The Tribunal, in its final judgment, upheld the denial of this benefit, referencing the Supreme Court's decision. 3. Timeliness of the Review under Section 129D: The appellants argued that the review order dated 09/02/2005 by the Commissioner was time-barred as it was beyond six months from the finalization date of 25/02/2004. Section 129D mandates that a review should be conducted within six months from the relevant date. This issue was not addressed by the Commissioner (Appeals) in his order dated 05/08/2005, which led to further appeals. 4. Validity of the Demand Notice Issued under Section 28: The revenue issued a letter on 26/06/2007 demanding dues without issuing a formal show-cause notice under Section 28 of the Customs Act. The appellants challenged this demand, arguing that no demand could be made without following the due procedure under Section 28. The adjudicating authority confirmed the demand on 09/05/2008, but this order was also challenged on the grounds of procedural lapses and limitation. 5. Jurisdiction of the Commissioner (Appeals) to Adjudicate the Matter: The appellants contended that the Commissioner (Appeals) lacked jurisdiction to adjudicate the matter as the Tribunal's order dated 24/06/2009 did not remand the case for fresh adjudication. The Tribunal clarified that the Commissioner (Appeals) should have issued specific directions for finalizing the assessment, which he failed to do. The Tribunal set aside the Commissioner (Appeals)'s order dated 29/12/2008, stating it was without jurisdiction. Conclusion: The Tribunal concluded that the Commissioner (Appeals) did not have the jurisdiction to re-adjudicate the matter as the finalization of the provisional assessment and the availability of the exemption under Notification No.6/2002-CE were still pending before the Tribunal. The Tribunal upheld the denial of the benefit under Notification No.6/2002-CE based on the Supreme Court's judgment in Triveni Engineering. The appeal regarding the procedural lapses and jurisdictional issues was allowed, setting aside the impugned orders.
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