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TMI Blog2016 (3) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... athan, Advocate For the Respondent : Shri. A.K. Singh, Addl. Comm. (AR) ORDER PER: RAJU 1. The appellants are in appeal against order-in-appeal dated 13/02/2014 passed by the Commissioner (Appeals). The facts of the case are as follows: 2. The appellants filed a bill of entry for import of steam turbine. They claimed the same to be classifiable as project import under heading 98.01 of the Customs Tariff. They also claimed the benefit of notification No.6/02-CE dated 01/03/2002. The bill of entry was assessed provisionally in terms of project import scheme. The said bill of entry No.569052 dated 19/02/2003 was finally assessed on 26/02/2004 by the Assistant Commissioner of Customs, (Import), JNCH, Nhava Sheva. The said finalisation of the assessment was challenged by revenue before the Commissioner (Appeals) by the Revenue on the ground that the benefit of Notification No.6/2002-CE dated 01/03/2002 is not available to the appellant. This was alleged on the basis of the ratio of this Tribunal judgement in the case of Triveni Engineering Industries Ltd., - 2004 (172) ELT 353. The appellant challenged the review on the grounds that the review is time barred as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as show-cause notice, the same is barred by limitation, as the same does not alleged any suppression of facts, etc. It was also argued that order-in-appeal dated 05/08/2005 passed by the Commissioner (Appeals) does not enable the department to recover duty short levied without following the procedure under Section 28 of the Customs Act. It was also argued that they are entitled to the benefit of notification, in respect of CVD on the impugned goods. The Commissioner (Appeals) vide order dated 29/12/2008 rejected the appeal filed by the appellant on the ground that the Commissioner (Appeals) had earlier passed an order dated 05/08/2005 and on the basis of the same demand notice dated 26/06/2007 under Section 28 of the Customs Act was confirmed by the Assistant Commissioner vide order dated 09/05/2008. It was held that since there is no stay from the CESTAT against the said order of Commissioner (Appeals) dated 05/08/2005 the order of confirmation of duty of adjudicating authority was proper. There is no discussion in the order on the other issues raised by the appellant in their appeal. The appellant challenged the said order-in-appeal before Tribunal. The Tribunal vide orders dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal dated 09/05/2008. The appellant argued before the Commissioner (Appeals) that the said proceedings before the Commissioner (Appeals) pertain to the notice dated 26/06/2007 demanding duty. It was argued by them that the CESTAT order has not remanded the case for fresh adjudication either on limited point or on entire dispute. He further argued that the Tribunal does not give any instructions to the Commissioner (Appeals) to hear the matter on merit or any other limited point. The Commissioner (Appeals) however went ahead and decided the issue. The Commissioner (Appeals) in the impugned order observed that: On perusal of the records, it is ascertained that the Hon ble CESTAT vide Orders No.S/270/09/CSTB/C-II dated 29/12/2008 and 24/06/2009 has stayed the order in appeal No.1007/08 AM(I) 420 (AC/GR.VI)/2008 (JNCH) dated 29/12/2008 in F.No.S/49-383/2008 Misc JNCH and further observed that it was the duty of the Commissioner (Appeals) to pass an appropriate order. I, therefore, pass a final order on the subject issue . The Commissioner (Appeals) observed that the Tribunal has in its order dated 24/06/2009 observed that it was the duty of Commissioner to pass an appropriate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09/02/2005, followed by order of Commissioner (Appeals) dated 05/08/2005 and the appeal No.C/1368/05 against the said order which is for consideration before us now. 7.2 The second set of proceeding started that the issue of letter dated 26/06/2007 citing Section 28 of the Customs Act, 1962 asking the appellant to deposit dues of ₹ 57,11,429/- along with interest. The same was followed by a stay application before this Tribunal which was dismissed vide its order dated 16/11/2007. This was followed by an order-in-original dated 09/05/2008 against which an appeal was filed before the Commissioner (Appeals) which was decided on 29/12/2008. This was followed by the order of Tribunal dated 24/06/2009. 8. It is seen that the issue of finalisation of provisional assessment and availability of exemption under notification No.6/2002 is still pending before the Tribunal in Appeal No.C/1368/05. In these circumstances, the order of Tribunal dated 24/06/2009 under no circumstances be treated as a order of remand with a direction to finalise the assessment of the bill of entry. It is seen that observation of Tribunal in para 5 reads as follows: The records, undoubtedly disclose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e any further directions in order to proceed to finally assess the Bill of Entry in exercise of the powers under Section 128A as amended with effect from 11/05/2001. It is now settled law that in case the order passed by the lower authority happens to be unsustainable, the Commissioner (Appeals) while setting aside such order can proceed to re-adjudicate the issue involved and decide the matter finally . We find that the Commissioner had not given any specific orders for finalisation. However, he had set aside the order of finalisation of assessment and allowed the departments appeal. The department had in its appeal had prayed for:- 1. The final assessment of B/E No.569052 dated 19/02/2003 may be set aside and the matter may be remanded to the original authority for fresh orders. 2. The benefit of Notification No.6/2002-CE dated 01/03/2002 may be denied. 3. Pass any other order as the Hon ble Commissioner (Appeals) may deemed fit in the facts and circumstances of the case. By allowing the department appeal it is seen that the Commissioner (Appeals) had granted the prayer made i.e., to set aside the order remanding the matter to original autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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