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TMI Blog2006 (7) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... e crept into the above said Final Order. They are as follows :- (i)Actually, the demand of duty amounts to only Rs. 75,78,417/-. This amount in para 1 of the Order has been indicated twice resulting in double demand of this amount. Actually, there was only one demand, which the Commissioner held payable in the order impugned in Appeal C/60/2005. The demand was actually quantified by finalisation of assessment. Therefore, the demand of duty against both the appeal Nos. should be Rs. 75, 78,417/- only. (ii)At para 4, the Hon'ble Bench was pleased to record all the important grounds urged by the appellant. In the order, the bench has entered a finding that the facts of Leader Valves Ltd. v. CCE - 2005 (180) E.L.T. 137(T) are distinguishable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been confirmed under that provision. Knowing this position of law, the Commissioner has instead, directed 'finalisation' of provisional assessment. (ii)On the date of the impugned order, the assessment was no longer provisional (31-12-2004). (iii) In the proceedings before the Commissioner of Customs, provisional assessment was not an issue or allegation. The order has traversed beyond the notice. (iv)In view of the clear finding of non-involvement of importer in the fraud by the original authority, the proviso to Section 28 (1) does not apply. The Commissioner ought to have dropped the proceeding, instead of directing 'finalisation' of provisional assessment. (vi)The demand was under proviso to Section 28 (1). Provisional assessment u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. Moreover, in para 8 of the impugned order, we have recorded the submission of the learned Advocate in the following manner :- "Shri B. N. Gururaj, learned advocate who appeared for the appellants emphasized the point that the assessments were kept provisional mainly for the production of original Bill of Lading, which was produced even on 12-3-2003. Afterwards, there was no reason for the Department to keep the provisional assessment pending." This shows that the learned Advocate did not dispute the fact that the assessments were kept provisional. Since the above submissions form part of the same Final Orders, it is not correct to say that no finding has been rendered by the Tribunal on this point. 6.3As regards the ground 4(iii), it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely to recover the revenue lost? Why should the exchequer be deprived of its legitimate dues for the reason that the appellants had been defrauded by a third party. When the Commissioner came to know that the DEPB scrips were forged, he had recorded a finding in the Adjudication Order that the appellants had not discharged the duty liability at the time of import. This fact cannot be disputed in the light of the investigations conducted into the DEPB scrip submitted at the time of import. Since the assessments had not been finalized, he had ordered finalisation of the same in the interest of the Revenue. The appellants would always take action either criminal or civil against the party who de-frauded them. Therefore, we do not find anythin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o turn down the prayer for high prerogative writs, on the negative plea of "alternative remedy", since the root principle of law married to justice, is ubi jus ibi remedium." Just as it is not proper for public bodies and Government to keep the wrongly recovered money on technicalities, private individuals also should not benefit illegally and plead that they be absolved from payment of the legitimate dues to the Government on mere technicalities. In the present case, there is absolutely no doubt that the appellants would not have cleared the goods free of duty on the basis of forged DEPB scrip. Once Revenue obtains knowledge of the forgery, then all legal steps should be taken to recover the dues due to the Government. Having come to know ..... X X X X Extracts X X X X X X X X Extracts X X X X
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