There are no provisions in CEA, 1944 to reopen assessment by issuing another SCN
PROVISIONAL assessments of goods cleared by appellant from their factory to HPCL, BPCL and IOCL were finalised by the Asst. Commissioner on 30.12.2003.
On such finalised assessment, the respondent filed refund claim.
The adjudicating authority held that the refund claim of Rs.14,03,758/- is sanctioned and directed the respondent to take credit in CENVAT account and ordered for reopening of the assessment in respect of the final assessment of HPCL and BPCL for the period 1999-2000 to 2000-2001, by issuing fresh show-cause notice.
The Commissioner (A) set aside this portion of the order recording that the Assistant Commissioner/Deputy Commissioner is not competent to re-open the final assessment if there is no appeal filed against the assessment.
Revenue is in appeal on the ground that facts were suppressed by the respondent assessee while finalizing the provisional assessment and documentary evidence were not produced; that the doctrine of sub-silentio is applicable hence the adjudicating authority's order of re-opening the final assessment is correct.
The Bench observed -
++ The factual matrix is that the assessments were finalised by the adjudicating authority and an order dated 30.12.2003 was issued. It is also on record that this order dated 30.12.2003 is not appealed against by the revenue. Provisions of Central Excise Act, 1944 specifically provides for appellate mechanism under Section 35 against adjudication orders.
++ Revenue had remedy to file an appeal against the order finalizing assessment, which they have not done so.
++ In the absence of an appeal against finalisation of assessment, adjudicating authority as a Deputy Commissioner could not have ordered reopening by directing to issue a show-cause notice. There are no provisions in the Central Excise Act, 1944 to reopen the assessment by issuing another show-cause notice.
++ First appellate authority has correctly relied on CBEC Circular dated 16.12.1999 which was in respect of issuing of corrigendum subsequent to the adjudication order, when the Law Ministry has opined that the corrigendum cannot be issued on passing of the adjudication order.
Expressing surprise at the argument of revenue defending the action of directing issuance of show-cause notice for re-opening of final assessment, the impugned order was upheld and the Revenue appeal was rejected.