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TMI Blog2022 (8) TMI 1088X X X X Extracts X X X X X X X X Extracts X X X X ..... ercise our discretionary jurisdiction, set aside the orders in Exts.P15 and P16 and remit the matter to Assistant Commissioner for consideration and disposal afresh. On remand fresh assessment orders were made against Redlands Ashlyn Motors PLC dated 29.12.2018 and 01.01.2019. In the instant common order, we have considered the grounds raised against the said orders and have set aside the assessment orders, remitted the matter to the Assistant Commissioner for consideration and disposal afresh. The net effect of the above conclusion is that whether the classification issue pending before the Assistant Commissioner is present or not on the date when the common order was made by the Tribunal. The review of the order of remand in the batch of cases is not available since the issue of classification was pending before the Assistant Commissioner. The remand is justified and hence confirmed - Revision dismissed. - OT.Rev Nos.40/2019, WP(C) No.16505/2022, OT Rev Nos.116/2020, 81/2020, 50/2020, 104/2020, 6/2020, 51/2020, 79/2020, 57/2020, 61/2020, 7/2020, 54/2019, 52/2019, 103/2020, & WP(C)No.40663/2018 - - - Dated:- 13-7-2022 - HONOURABLE MR. JUSTICE S.V. BHATTI HONOURABLE MR. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 (Ext.M) KVATA 3767/16 dtd 26.05.2017 (Ext.N) 32080788022/2013-dtd 29.12.2018 (Ext.O) 32080788022/2014-dtd 01.01.2019 (Ext.P) T.A (VAT) No.109/2017 dtd 01.02.2019 40/2019 2013-14 2014-1 KVATA 10/16 dtd 26.05.2017 (Ext.M) KVATA 3767/16 dtd 26.05.2017 (Ext.N) 32080788022/2013-dtd 29.12.2018 (Ext.O) 32080788022/2014-dtd 01.01.2019 (Ext.P) T.A (VAT) No. 154/2017 dtd 01.02.2019 81/2020 2013-14 2014-15 KVATA 10/16 dtd 26.05.2017 (Ext.M) KVATA 3767/16 dtd 26.05.2017 (Ext.N) 32080788022/2013-dtd 29.12.2018 (Ext.O) 32080788022/2014-dtd 01.01.2019 (Ext.P) T.A (VAT) No.114/2017 dtd 01.02.2019 52/2019 2013-14 2014-15 KVATA 10/16 dtd 26.05.2017 (Ext.M) KVATA 3767/16 dtd 26.05.2017 (Ext.N) 32080788022/2013-dtd 29.12.2018 (E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T.A (VAT) No.110/2017 dtd 01.02.2019 61/2020 2013-14 2014-15 KVATA 10/16 dtd 26.05.2017 (Ext.M) KVATA 3767/16 dtd 26.05.2017 (Ext.N) 32080788022/2013-dtd 29.12.2018 (Ext.O) 32080788022/2014-dtd 01.01.2019 (Ext.P) T.A (VAT) No.111/2017 dtd 01.02.2019 79/2020 2013-14 2014-15 KVATA 10/16 dtd 26.05.2017 (Ext.M) KVATA 3767/16 dtd26.05.2017 (Ext.N) 32080788022/2013-dtd 29.12.2018 (Ext.O) 32080788022/2014-dtd 01.01.2019 (Ext.P) T.A (VAT) No.117/2017 dtd 01.02.2019 103/2020 2013-14 2014-15 KVATA 10/16 dtd 26.05.2017 (Ext.M) KVATA 3767/16 dtd 26.05.2017 (Ext.N) 32080788022/2013-dtd 29.12.2018 (Ext.O) 32080788022/2014-dtd 01.01.2019 (Ext.P) T.A (VAT) No.116/2017 dtd 01. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was allowed and remitted the matter to the Assistant Commissioner (Assessment) Special Circle to assess the classification issue afresh. The operative portion of the order of Deputy Commissioner reads thus: In view of the above Clarification coupled with the judgments, I am of the view that the assessment was completed without conducting proper enquiry under law. Therefore, the Assessing Authority is directed to conduct appropriate enquiry and re-do the assessment afresh based on the findings of the enquiry conducted by the Assessing Authority. For the above purpose, the assessment order is Set aside for fresh disposal. Order accordingly. 4.1 The petitioner filed W.P.(C) No.8879/2018 praying for a direction to the Assistant Commissioner (Assessment) Special Circle to complete the assessment of the petitioner for the Assessment year 2013-14 by keeping in perspective Ext.P1 order dated 26.05.2017. On 15.03.2018, the writ petition was disposed of, and the operative portion reads thus: 3. Having regard to the facts and circumstances, I deem it appropriate to dispose of the writ petition directing the respondent to complete the assessment as directed in Ext.P1 order, with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ref. 12 cited was issued to the assessee offering an opportunity of personal hearing on 21-12-2018. This notice was communicated to the assessee on 13-12-2018 and duly acknowledged on the same day. On 21-12-2018, the assessee filed another reply which is appended below: *** *** *** I have verified the reply filed by the assessee in detail. In this reply the assessee stated the chronological details of the incident taken place regarding the assessment procedures and it ends with a cautionary in view that the clear possibility of malice if the assessing authority moves with the assessment procedure. I have considered this reply before finalising the assessment. These points were already considered in detail in the first reply filed by the assessee. The commodities in the schedules are allotted with code Numbers which are developed by the International Customs Organization as Harmmonised System of Nomenclature (HSN) and adopted by the Customs Tariff Act 1975. Verification of the assessment records, revealed that the assessee imported machines under three HSN codes namely 9022.90.90, 9022.19.00 and 9027.90.90 (as per bill of entry) and misclassified the same under HSN code a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that by referring to the chronology of events on 26.05.2017 the Deputy Commissioner allowed the appeals filed by the dealer/petitioner. Therefore, the classification adopted, at the first instance, was set aside and in view of the nature of the controversy specific directions have been given by the Deputy Commissioner (Appeals). The Department, having felt the need, obtained the opinion from the Executive Engineer Electronics Division Thrissur. The opinion is categorical to classify the commodity as Spectrum Analyser . 7.2 Secondly, the Assistant Commissioner (Special Circle) cannot be said to have denied an opportunity to the dealer/ petitioner while making assessment orders in Exts.P15 and P16. But, the inadequacy in either consideration or procedural fairness would certainly arise from the opportunity availed by the dealer/petitioner and consideration of grounds/materials brought on record while making the orders in Exts.P15 and P16. The classification in the case on hand ought to have been undertaken firstly from the product details, the purpose of the product, commercial utility, HSN codes etc by referring to which commodity was imported, and Annexure 1 of the KVAT Act wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstruments Pvt Ltd is the petitioner in the O.T. Revisions. The Revisions are filed against the common order dated 01.02.2019 of the Tribunal. The details of Assessment Year etc are stated in the tabular form and are not reiterated. The petitioner questions the order of remand made by the Tribunal as illegal and avoidable. The operative portion reads as follows: 32. The only other appeal which remains for our consideration is TA VAT 799/17 which is an appeal field by the assessee relating to the CST assessment for the year 2014-15. In this appeal, the following two contentions have been raised before us: 2. The interference in the figures computed and filed before the assessing authority by way of statutory audit report is very much limited and at any cost it should not disturbed the accounting principles. Here in this case, the assessing authority has wrongly interfered with the figures of trading result under the pretext of best judgment of estimation. 3.Credit notes produced to the extent of ₹1,37,147/- is not considered is improper and not reconciling with the best judgment assessment, when tallied and judged with the audited statement. 33. As i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed above, on remand fresh assessment orders were made against Redlands Ashlyn Motors PLC dated 29.12.2018 and 01.01.2019. In the instant common order, we have considered the grounds raised against the said orders and have set aside the assessment orders, remitted the matter to the Assistant Commissioner for consideration and disposal afresh. The net effect of the above conclusion is that whether the classification issue pending before the Assistant Commissioner is present or not on the date when the common order was made by the Tribunal. The review of the order of remand in the batch of cases is not available since the issue of classification was pending before the Assistant Commissioner, and even now because of our views in W.P.(C) No.40663/2018. We are of the view that the remand is justified and hence confirmed. O T Revisions fail. 11. We have seen the consideration on the classification, adjudication etc leading to independent assessment orders in the cases of two dealers but same commodity. The commodity involved in both cases is one and the same. Therefore, this Court directs the Assistant Commissioner to enquire into the issues now remitted to him, by setting aside Ext ..... X X X X Extracts X X X X X X X X Extracts X X X X
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