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TMI Blog2017 (5) TMI 1128X X X X Extracts X X X X X X X X Extracts X X X X ..... the issuance of SCN for the present facts is legally valid recourse for ‘finalisation of assessment’. The original adjudicating authority will finalise provisionally assessed Bill of Entry during the fresh adjudication proceedings, which are being ordered by this order, for which the appellant shall be given opportunity of personal hearing and submission of necessary documents/evidence as admissible by law - appeal allowed by way of remand. - C/52857/2016-SM - Final Order No. 53175/2017 - Dated:- 27-4-2017 - Mr. Ashok K. Arya, Member (Technical) Shri Abhinav Jaganath, Advocate - for the appellant Shri K. Poddar, D.R. - for the respondent ORDER Per Ashok K. Arya : The appellant viz. M/s Subros Ltd. is in appeal against Order-in-Appeal No. 489/2016 dated 13.6.2016 whereunder Order-in-Original dated 6.1.2015 passed by Joint Commissioner was set aside and the matter sent back to the original authority viz. Joint Commissioner to have a fresh look after due finalisation of the provisionally assessed Bill of Entry No. 7965818 dated 17.9.2012 . The impugned order-in-appeal further says that upon finalisation, the original adjudicating authority will readj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LT 949 (Tri.- Mum). (iv) International Computers Indian Manufacturers Ltd. Vs. Union of India 1981 (8) ELT 632 (Del.). 6. Ld. Counsel for the Revenue however, vehemently submits that Revenue has issued show cause notice in order to finalise provisional asseseement and show cause notice can be issued under Section 28 of the Finance Act, as there is no other way than under Section 28 where Revenue proposed change of classification. In support, he cites following case laws: (a) Gujarat Narmada Valley Fertilizers Chem. Ltd. (GMVFC) Vs. CC 2014 (305) ELT 72 (Guj.). (b) Shree Electromelts Ltd. Vs. CC 2014 (314) ELT 719 (Tri.- Ahmd.). 7. After having gone through the facts on record and submissions of both the sides, it appears that Section 18 of the Customs Act deals with provisional assessment of duty and Section 28 mainly deals with the recovery of dues from the concerned persons in case of short levies or non-levies of duty or erroneous refund. The appellant submits that the Revenue should have firstly finalised the assessment before issuing any show cause notice if required. The importer appellant filed Bill of Entry No. 7965818 dated 17.9.2014 and the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Proceedings under Section 11-A have to be commenced with a show cause notice issued within six months from the relevant date. Relevant date has been defined under sub-section 3(ii) to mean in a case where duty of excise is provisionally assessed under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof. 18. After final assessment, a copy of the order on the return filed by the assessee has to be sent to him. Duty has to be paid by the assessee on the basis of the final assessment within ten days time from the receipt of the return. No question of giving any notice under Section 11-A arises in such a case. It is only when even after final assessment and payment of duties, it is found that there has been a short-levy or non-levy of duly, the Excise Officer is empowered to take proceedings under Section 11-A within the period of limitation after issuing a show cause notice. In such a case, limitation period will run from the date of the final assessment. The scope of Section 11A and Rule 173-I is quite different. In this case, the provisional assessment earlier made by the proper officer has been quashed and pursuant to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ential in nature and includes proposal for adopting correct classification and quantifying the differential customs duty on 37,000 MT of coal imported by the petitioner. Proposal is also for recovery of the differential customs duty with interest. 8. In our opinion, this is not a case where recovery of duty under Section 28 of the Act is preceded the finalisation of the classification. As a matter of fact, the very notice issued is for finalization of the classification on the basis of the proposal and the prima facie opinion of the department rejecting the classification presented by the petitioner. We do not find that the same is without jurisdiction. 9. Learned counsel, however, contended that if the adjudication were to be undertaken by the Commissioner, the petitioner would lose its valuable right to appeal. As noted earlier, if there is no dispute about the competence of the Commissioner to issue show cause notice and adjudicate upon it, merely because by way of consequence, there is elimination of right of one appeal, that by itself would not convince us to hold that the show cause notice is without jurisdiction. Right of appeal is a creation of the statute. If the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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