ORDER
J.H. Joglekar, Member (T)
The facts leading to this appeal from Revenue are as follows:
1. The respondents, M/s. Mardia Chemicals Ltd., filed 18 price lists during the period February, 1991 to July, 1993.13 of the price lists were in Part-II. The Assistant Collector vide order, dated 18-8-1993 observed that in the case of Part-II price lists, the assessees had not filed necessary documents and information nor had they submitted copies of the contracts, or the conversion rate for foreign currency. As regards the Part-I price list, he felt that further inquiry was necessary which was likely to take time. In terms of Rules 173C(2) and (5) read with Rule 9B of the Central Excise Rules, he directed the provisional assessment to be made and directed the assessees to file the requisite bond. Instead of complying with this order, the assessees filed an appeal. The Collector (Appeals) set aside the order directing the Assistant Collector to take action in view of the amended provisions of the said Rule, even in respect of the disputed price list. In making this order he observed that the reasons for directing provisional assessments were not made in writing. He further observed that the Assistant Collector had not made an appraisal of the factors leading to his decision. He criticised the department for “shipping the price list without making any prima facie examination”. He observed that the assessees were prevented from clearing the goods by the behaviour of the Assistant Collector. The present appeal is against this order.
2. We have examined the provisions of the law as it than stood. Rule 173Q3) permitted the proper officer even to modify the value suggested by the assessee to make it conform with the provisions of Section 4 of the Act. Sub-Rule (5) empowered the Assistant Collector to direct the provisional assessment to be resorted to. If he was of the opinion that some enquiry was warranted. The same sub-rule empowered him to direct the assessee to file a bond in terms of Rule 9B of the Rules.
3. The order of the Assistant Collector shows that all requisites prescribed under the rules had been fulfilled by him before making this order. The opinion of the Assistant Collector to resort to provisional assessment cannot be contested. It was futile to suggest that in these deliberations the assessee must be involved. The assessee was required to submit certain documents which he did not do. The original order revealed the fault squarely and the assessees would have had no grievance against this order.
4. The order made in exercise of a judicial function would be an appealable order. The enabling provision which speaks of “any decision or order” must be read with circumspection. If it were not so even the decision to issue a show cause notice can become the subject matter of an appeal where the assessee may claim that in deciding to issue the show cause notice, he had not been heard and therefore natural justice was denied. It is our considered opinion that the order passed by the Assistant Collector was not an appealable order.
5. We also find that the ld. Commissioner did not understand the propriety of Rule 173C at all. He had without reason considered the amendment to Rule 173C of the rule, when he was not required to do so. He forgot that he was a creature of statute and took up upon himself to remedy the inconvenience caused to the assessee by having been made to wait. In the process he conveniently forgot that the assessee had to wait because of their failure to submit the necessary documents. We find no merit in the various unnecessary observation made by the Collector. We allow this appeal and set aside the impugned order.