ORDER
K.D. Mankar, Member (T)
1. This is revenue’s appeal against the order-in-original passed by the Commissioner of Customs, Mumbai. The Commissioner, in the impugned order was dealing with the show cause notice issued by the DRI to the importers seeking change of classification of the imported material described under a brand name “Expancel 642 WU (Blowing Agent), the correct description/chemical name of which was “Microspheeres Poly Vinylidene Chloride”. It was alleged that the importers ought to have furnished complete declaration and mentioned classification under heading No. 3904.50 as against the classification declared under chapter heading No. 3809.91. The Commissioner, (sic) in the impugned order observed that, the Assistant Commissioner of Customs had also issued the show cause notices proposing finalizing the provisional assessments. Some of the assessments are pending finalization while others have been finalized. The Commissioner observed that the proceedings which have been initiated by DRI in respect of the same imports, which are the subject matter of proceedings of finalisation of provisional assessment before the proper officer of Customs are without any authority of law. The Commissioner dropped the show cause notices holding the same to be bad in law. The instant revenue appeal challenges the order of the Commissioner.
2. In the revenue appeal, it has been prayed that, even though the assessments are provisional and the provisions of Section 28 were not attracted the Commissioner ought to have determined the liability to confiscation and penal action. The provisional assessment was resorted to for finalization of classification, pending test results, in respect of the imports in question.
3. The Revenue has also placed reliance on the Hon’ble Supreme Court’s judgment in the case of Jain Sudh Vanaspati reported in AIR 92 SC 572 to justify that the assessment can be re-opened where there is suppression of facts and when the facts come to notice as a result of investigation. It is stated that in respect of similar imports at air cargo complex in those cases where final adjudication orders were passed, the appeals were filed before the CEGAT and the CEGAT has upheld the orders in four cases though penalties in some cases have been reduced.
4. We have carefully considered the grounds of the appeal and submissions made by the Ld. DR.
5. In so far as the goods which were cleared on the basis of provisional assessments are concerned, we are in agreement with the Commissioner that the impugned show cause notices are bad and without the authority of law. Instead of issuing separate show cause notices proposing change of classification on the basis of evidence that was in unearthed the DRI could have furnished the said evidence to the proper officer dealing with finalisation of the assessment. Therefore, we are in full agreement with adjudicating authority that the exercise of issue of show cause notice by the DRI in this case was totally uncalled for and the same also amounts to commencing parallel proceedings on the same subject before two different authorities.
6. The revenue appeal also mentions that in respect of three show cause, notices, the assessments were already finalized and at least these show cause notices ought to have been examined on merit by the Commissioner. We are unable to accept this proposition. When the assessments were finalized, notwithstanding the power available to the proper officer under Section 28 of the Customs Act, 1962 to demand duty short levied etc. through such assessment, unless such order of assessment was successfully reviewed in favour of revenue in terms of provisions contained in Section 129D of the Customs Act, the Commissioner could not have examined the merits of the case on classification which was finalized in favour of the respondents by the proper officer. Since in this case, the duty liability itself could not be confirmed, we note that non-determination of penal liability can not be alleged to be an infirmity in the impugned order.
7. We accordingly find no merit in appeal filed by the revenue and therefore reject the same.
(Operative part announced in Court)