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2016 (9) TMI 785 - HC - Central ExciseValidity of order of tribunal in remanding back the case to Superintendent - According to the appellant (revenue), the Tribunal, while remanding the matter, failed to consider the fact that the Superintendent was not the proper authority to finalise provisional assessment, under Rule 9(B) of the erstwhile Central Excise Rules, 1944 and that the Tribunal has not addressed the question, as to whether, an appeal against the Superintendent s letter is maintainable or not, in the absence of any challenge to the Assistant Commissioner s order. Held that - Legislature in the statutes has used the expression, personal hearing , opportunity of being heard , or consider the representation etc. Right if any under an Act to be decided, by the competent authority, may or may not, require an opportunity of being heard. It depends upon the nature of the right. Infringement and consequence thereof, may require the court to interpret a provision and to arrive at a conclusion as to whether an opportunity of being heard or personal hearing, should be provided and read into a provision. Reading of Rule 6(b)(i) of the Central Excise (Valuation) Rules, 1975, in our considered view does not mandate the Jurisdictional Superintendent, Central Excise to provide an opportunity of hearing, for computation of duty to be paid by an assessee. In the light of the discussion and various decisions, we are of the considered view that the directions of the Tribunal, to the Jurisdictional Range officer to provide an opportunity of hearing, is not in accordance with the scheme of the Act and the rules framed thereunder, and hence the directions are liable to be set aside and accordingly set aside. Whether the directions issued by the Tribunal to the Jurisdictional Superintendent to consider the submission of the assessee, in the light of the decision in Dai Ichi Karkaria Ltd. vs. Collector of Central Excise, Pune, reported in 1996 (1) TMI 179 - CEGAT, NEW DELHI has to be followed or not - Held that - in the case on hand, provisional assessment has been directed to be finalised as per the order-in-original dated 22.05.1998 passed by the Assistant Commissioner of Central Excise, Central Excise Division, Cuddalore. Dai Ichi Karkaria s case has been decided on 11.08.1999. Perusal of the order-in-original dated 22.05.1998 does not indicate, any reference to the above said judgment. As observed earlier, there was no challenge to the order-in-original and therefore, when the appeal was filed against the letter of the Superintendent of Central Excise, Range 1, Cuddalore directing the respondent/assessee to pay the differential duty of ₹ 1,14,29,086/-, the appellate authority has rejected the same, stating that the assessment had attained finality. The Appellate authority has passed the order on 12.06.2013, by which time, the Hon ble court in Collector of Central Excise, Pune vs. Dai Ichi Karkaria Ltd reported in 1999 (8) TMI 920 - SUPREME COURT OF INDIA has approved the decision of the Tribunal. Therefore, the range jurisdictional officer is bound to take note of the decision of the Hon ble Apex Court and compute the value of excisable goods under assessment. We make it clear that while doing so, the jurisdictional officer is under no obligation in law to provide an opportunity of hearing to the assessee. He is required to only compute the value and the differential duty, as per the rule and decision of the Hon ble Apex Court. Whether the appeal filed against the Superintendent s letter O.C.No.1251/98 dated 20.11.1998 issued in pursuance of and in execution of the Assistant Commissioner s Order-in-Original No.30/1998 dated 22.5.1998 is maintainable in view of the Hon ble Supreme Court judgments in the case of Flock India Pvt. Ltd. reported in 2000 (8) TMI 88 - SUPREME COURT OF INDIA and Priya Blue Industries Ltd., reported in 2004 (9) TMI 105 - SUPREME COURT OF INDIA - Held that - it is the decision of the Range Jurisdictional Superintendent, in arriving at the value of the excisable goods, under assessment and differential duty, if any, paid by the assessee, which is put to challenge, by way of an appeal. Adjudicating authority has directed the Superintendent to report compliance. But even before the Adjudicating authority could pass a final order, the assessee has filed the appeal, against the letter of the Superintendent. Valuation has to be done, only in accordance with Rule 6(2) of the Central Excise Valuation Rules, 2004 and the judgment of the Hon ble Apex Court Dai Ichi Karkaria s case (supra). Whether it is in the form of a letter or an order of the competent authority, which is put to challenge on the facts and circumstances of the case, what is required to be considered is whether, it affects the interests of the assessee. It cannot be said that the assessee would not be prejudiced, if valuation is not done as per the decision of the Hon ble Apex Court. Admittedly, the judgment of the Hon ble Supreme Court, was not placed before the authorities. Adjudicating authority has directed the Superintendent to finalise the RTI2 assessment and report compliance. Perusal of the letter dated 20.11.1998, also shows that after computation, the Superintendent has marked a copy of the same to the adjudicating authority. In ordinary circumstances, this court would hold that an appeal against the letter of the Superintendent is not maintainable, in the light of Flock India Pvt Ltd. s case (supra) But inasmuch the assessment has been directed to be finalised as per the directions of the adjudicating authority, we are not inclined to accept the contentions of the appellant, on the third question of law. We make it clear that this judgment shall not be treated as a precedent. - Appeal disposed of
Issues Involved:
1. Jurisdiction of the Superintendent in finalizing provisional assessments. 2. Dismissal of the application for rectification of mistake. 3. Maintainability of the appeal against the Superintendent's letter. Issue-wise Detailed Analysis: 1. Jurisdiction of the Superintendent in Finalizing Provisional Assessments: The primary issue revolved around whether the Tribunal was correct in remanding the issue to the Superintendent, who is not empowered under the statute to issue orders for the finalization of provisional assessments. The appellant argued that the proper officer for final assessments under Rule 9B of the Central Excise Rules, 1944, is the Deputy or Assistant Commissioner of Central Excise. The court noted that the Superintendent's role was to quantify the differential duty as directed by the Assistant Commissioner. It was clarified that the computation of differential duty by the Superintendent does not constitute an adjudicatory function requiring a hearing. The court concluded that the Tribunal's direction to the Superintendent to provide an opportunity of hearing was not in accordance with the scheme of the Act and rules, and thus, the Tribunal's directions were set aside. 2. Dismissal of the Application for Rectification of Mistake: The second issue concerned whether the Tribunal was correct in dismissing the department's application for rectification of mistake. The appellant contended that the Tribunal failed to recognize that the Superintendent's letter was not an appealable order. The court observed that the Tribunal had acknowledged the binding nature of the Supreme Court's decision in Dai Ichi Karkaria's case, which settled the issue on merits in favor of the respondent. The court upheld the Tribunal's decision, stating that there was no error in dismissing the rectification application since the Tribunal had correctly directed the Superintendent to consider the Supreme Court's ruling in the computation of differential duty. 3. Maintainability of the Appeal Against the Superintendent's Letter: The third issue addressed the maintainability of the appeal against the Superintendent's letter. The appellant argued that the letter was not an appealable order under the Central Excise Act, 1944, citing the Supreme Court judgments in Flock India Pvt. Ltd. and Priya Blue Industries Ltd. The court examined the letter, which directed the respondent to pay the differential duty and concluded that the letter affected the interests of the respondent. Although the court acknowledged that ordinarily, an appeal against such a letter would not be maintainable, it held that in this specific case, the appeal was maintainable because the finalization of the assessment had to be done in accordance with the Supreme Court's decision in Dai Ichi Karkaria's case. The court clarified that this judgment should not be treated as a precedent. Conclusion: The court disposed of the civil miscellaneous appeal, setting aside the Tribunal's direction for a hearing by the Superintendent and upholding the Tribunal's decision to consider the Supreme Court's ruling in Dai Ichi Karkaria's case for the computation of differential duty. The court also held that the appeal against the Superintendent's letter was maintainable in this specific case. No costs were awarded.
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