ORDER
G.A. Brahma Deva, Member (J)
1. This appeal arises out of and is directed against the Order-in-Appeal No. 289/2001 MCH, dated 10.7.2001 passed by the Commissioner of Customs (Appeals), Mumbai.
2. Shri J.P. Kaushik, learned Advocate appearing for the appellants drew our attention to the operative portion of the impugned order which reads as under–
Moreover, arriving at loading of 20% has not been justified by any quantifiable data. I observe that in the Customs (Provisional Assessment) Regulations, 1963 it is prescribed that maximum 20% revenue deposit can be taken while making provisional assessment. However, this itself will not give an authority to the assessing officer to load the value by 20% without assigning any reason while finalising the assessment. As long as the assessment is provisional they are within their jurisdiction to collect revenue deposit to the extent of 20%. However, once the assessment is being finalised they have to put forward the reasons for finalising any loading. In the light of above, the finalisation of the assessment by the impugned Order-in-Original by loading the invoice value to the extent of 20% cannot be sustained. The finalisation is, therefore, set aside. The assessments if finalised in compliance of this order will be treated as provisional and the department will be at liberty to finalise the same again after making necessary enquiry and of course following the principles of natural justice in the light of above observations.
In the above Paragraph, it was observed by the Commissioner (Appeals) that as long as the assessment is provisional they are within their jurisdiction to collect revenue deposit to the extent of 20%. However, once the assessment is being finalised they have to put forward the reasons for finalizing any loading. In the light of above, the finalisation of the assessment by the impugned order-in-original by loading the invoice to the extent of 20% cannot be sustained. The said finalisation is, therefore set aside. Further the appellate authority has observed that the assessments if finalized in compliance of this order will be treated as provisional and the department will be at liberty to finalise the same again after making necessary enquiry and of course following the principles of natural justice in the light of above observations.
3. Shri Kaushik submitted that in view of the clear findings given by the Commissioner (Appeals) that the finalisation of the assessment by the impugned order-in-original by loading the invoice value to the extent of 20% cannot be sustained and the finalisation is, therefore set aside, there is no justification for him to observe that the assessment if finalised in compliance of this order will be treated as provisional and the department will be at liberty to finalise the same again after making necessary enquiry.
4. Heard Smt. Radha Arun, SDR for Revenue justified the action of the Department.
5. On a careful consideration of the submissions made by both sides and taking into consideration of the findings given by the Commissioner in the impugned order, we find no justification for ordering finalisation of assessment again after conducting an enquiry. In the view we have taken, the appeal is allowed with consequential relief, if any.