JUDGMENT
K.K. Usha, J.
1. The common issue arising for consideration in these appeals is whether an appeal is maintainable under Section 128 of the Customs Act, 1962 against the provisional assessment. The Commissioner of Customs (Appeals) in his orders impugned in these appeals has taken the view that such appeal is not maintainable and they were dismissed as pre-mature.
2. It is contended on behalf of the appellants that wording of Section 128 of the Customs Act, would not entertain any doubt regarding the maintainability of an appeal from the provisional assessment. Appeal is provided against any decision or order passed under the Act by an officer of the Customs lower in rank than the Commissioner of Customs. These provisions are pari materia with the provisions under Section 35 of the Central Excise Act, 1944. The learned counsel sought to place reliance on the following decisions in support of the contention of the appellants:
(1) Indian Aluminium Cables Ltd. v. CCE, 1989 (41) EL T 688A.
(2) Anchor Porcelain Works v. CCE, Rajkot, 1996 (83) ELT 152.
(3) Asian Paints Ltd. v. CCE, Meerut, 1998 (102) ELT 240, and
(4) Handigas Equipment Pvt. Ltd. v. CCE, Chandigarh, 2000 (115) ELT 703
3. Learned counsel for the appellants as well as learned Departmental Representative brought to our notice another series of decisions of the Tribunal which took a different view. They are as under:
(1) Ahura Chemical Products Pvt. Ltd. v. CCE, Bombay-1, 1995 (80) ELT 642.
(2) CCE, Rajkot v. Mardia Chemicals, 2000 (119) ELT 72, and
(3) Shanti Alloys Pvt. Ltd. CC, Bangalore, 2000 (123) ELT 643.
4. In Indian Aluminium Cable Limited, it is seen that the learned counsel for the appellant has placed reliance on a decision of Gujarat High Court in Jamnadas Chhotalal Desai and Ors. v. C.L Nangia and Ors., AIR 1965 Guj. 215 in support of the contention that an appeal will lie from the provisional assessment under Rule 9B
of the Central Excise Rules, 1944, under Section 35 of the Central Excises & Salt Act, 1944. In the above case, constitutional validity of the different provisions of the Central Excises & Salt Act, 1944 and Central Excise Rules, 1944, was challenged. While upholding the constitutional validity of Section 3 and Rules 7 & 9, a Bench of Gujarat High Court had occasion to consider the provisions of Rules 9B. While so it is observed that the assessee has a remedy to apply for provisional assessment under Rule 9B when there is a dispute and the officer were to assess in the assessment memorandum on a scale different from the one set out in his application. It was further observed as follows:
“No doubt, the rule gives powers to the officer to make provisional assessment at his discretion, but if the officer were to refuse to allow such provisional assessment, the applicant has a right of appeal and a revision against such refusal.”
5. Learned counsel for the appellants brought to our notice a decision of Orissa High Court in Orient Paper & Industries Ltd. v. Superintendent, Central Excise, Chandigarh, 1996 (82) ELT 192. In the above case, challenge made by the assessee against the provisional assessment in a Writ Petition filed under Article 226 of the Constitution of India, was not entertained by the High Court on the ground that he has an alternative remedy of filing an appeal from the provisional assessment.
6. In the light of the conflicting view taken by the different Benches of the Tribunal, in the normal course, we should have referred the matter to a Larger Bench, But in the light of the view taken by the Orissa High Court and also in the light of the observations contained in the decision of Gujarat High Court, we will be justified in accepting the contention of the appellants that an appeal under Section 35 would be maintainable from the provisional assessment under Rule 9B, without placing the matter before a Larger Bench. We therefore, set aside the impugned orders.
7. Since the provisional assessments are pending for more than two years, we are of the view that it is only just and proper to send back the matter to the Adjudicating Authority to finalise the assessments within a specified period.
8. The Adjudicating Authority will finalise the assessment within a period of three months from the date of the receipt of this order.
9. Appeals stand allowed as above.