9911796707
TMI Blog2003 (1) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... erential duty of Rs. 52,36,787/-. The lower authority during the scrutiny of the connected assessment order and workings thereof, after the final assessment order was issued noticed that for the clearances of transmission assembly model No. 6Y1633 98962 and 8E1934 the customer i.e. M/s. Hindustan Motors Trivellore have supplied the raw material free of cost for which the cost was intimated to the appellant. For the year 1999-2000, while including the cost of free supplies to arrive at the value of their finished products the appellant omitted to include their profit margin on the above free supply materials. It was alleged that the value declared for final assessment was not in conformity with the provisions of Section 4 of the Central Excise Act, 1944 read with Valuation Rules, 1975, resulted in short payment of duty amount of Rs. 17,21,787/- for the period 1999-2000. Hence a show cause notice dated 28-1-2002 was issued to the appellant demanding the above amount. After due process of law the lower authority passed the impugned order-in-original. 3. Aggrieved by the order the appellant filed an appeal in the grounds of appeal it was contended that : 3.1 The receipt of material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 52,36,787/- immediately. With terse authoritativeness, the letter (supra) emphatically concludes The Provisional Assessment for 1999-2000 are finalised accordingly . Precisely two days before the conclusion of one year from the date of passing the above finalisation order (28-1-2002), a Show Cause Notice was released to rectify the judicial imperfection of an audacious omission of Rs. 17,21,787/- (Rupees Seventeen Lakhs twenty one thousand seven hundred and eighty seven only). In spite of the perceived handicap imposed by the absence of a full fledged charge with a legal connotation, the Show Cause Notice made a strange and truthful admission : During the scrutiny of the connected assessment order and workings thereof, after the final assessment order was issued, the following is noticed. For the clearances of Transmission Assembly Model No. 6Y 1633, 9G9624 and 8E1934, the customer i.e. M/s. Hindustan Motors Ltd., Tiruvellore have supplied raw materials free of cost for which the cost was intimated to the assessee. For the year, 1999-2000, while including the cost of free supplies to arrive at the value of their finished products, the assessee omitted to include their pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd, therefore, referred the matter to the Law Ministry and sought their opinion whether the corrigendum issued subsequent to Adjudication Order passed by the Commissioner is legally valid and tenable considering its nature and relevance to the adjudication order as well as the Provisions of Section 21 of the General Clauses Act. The opinion received from the Law Ministry is reproduced below for your information and guidance. Law Ministry s Opinion Ministry s of Law, Justice C.A. Department of Legal Affairs The referring Department has sought our advice whether the corrigendum issued by the Commissioner of Customs, dated 12-8-1999 to its earlier order dated 16-10-1998 is legally valid and tenable. 2. The Commissioner of Customs, vide his order dated 16-10-1998 adjudicated the matter and passed the orders as can be seen at pages 23-34 of his order placed in the file. Subsequently, almost after 10 months, he has issued a corrigendum wherein the rate of duty and penalty indicated in the earlier order were substituted. Now, the question for consideration us whether this is a valid order. 3. Admittedly, Commissioner of Customs is not a court and he exercises only a Limited qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s tantamount to review of the decision which is not provided under Law, and therefore, we are of the view that this impugned order is not legally sustainable notwithstanding Section 21 of the General Clauses Act. Sd/- Addl. Legal Advisor 3. The above advice of the Law Ministry may please be noted by all concerned for information guidance and necessary action. Where any significant change in the order becomes necessary after the order has been issued which cannot be termed as clerical or arithmetical or typographical mistake, proposals for review may be mooted to appropriate authority instead of taking recourse to corrigendum. 6. In view of the above, I am of the considered opinion that the impugned order of the Deputy Commissioner suffers from lack of jurisdiction as the said authority became functus officio with the issuance of Finalisation of Provisional Assessment Order C.No.IV/16/138/96-PA, dated 30-1-2001. It is not within his competence and jurisdiction to seek to revise that order after nearly a year by issuing a Show Cause Notice to correct and supplement it. Functus officio latin phrase meaning no longer having power or jurisdiction (because the power has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
