Per V.K. Ashtana :

This is an appeal against Order-in-Original No. 4/96 dated 12.8.96 passed by the Commissioner of Central Excise, Delhi who had been empowered by the Govt. to deal with these matters pertaining to assessment of Cigarettes falling under Sub Heading 2403.11 of the Central Excise Tariff Act for the period from 1st April 1980 to 28th February, 1983. The said Order-in-Original had been issued by the Ld. Commissioner in consideration of the Show cause notice C No. V/24/30/74/87-C.l dated 25.9.87 issued by the Collector of Central Excise, Bangalore.

2. Vide the Order-in-Original impugned, the Ld. Commissioner has, inter alia, noted the directions/orders of the Hon'ble Karnataka High Court in this matter, the gist of which was that the jurisdictional Assistant Commissioner of Central Excise was to finalise the pending provisional assessment as per law for the period noted above and had ordered that this finalisation of provisional assessment should be completed as expeditiously as possible.

3. While the present appellant had no quarrel with this direction, the subsequent paragraphs of the said Order-in-Original impugned have raised dispute which is before us. In Para (iv) the Ld. Commissioner has directed that as soon as the competent authority completes the finalisation of the said provisional assessment, the Commissioner Should be informed of this position so that he can continue to proceed with adjudication on this show cause notice dated 25.9.87.

4. This order was passed in view of the Ld. Commissioner's finding in Para (i) of the order impugned that the contention of the noticees that since the show cause notice had been issued during the pendency of the provisional assessment, it was not sustainable in law, was not acceptable to him.

5. In Para (iv) the Ld. Commissioner further clarified that the direction contained in this sub-para of the order was merely an interim direction in the course of adjudication proceedings in respect of this show cause notice and is without prejudice to his further order which he may pass subsequently, after finalisation of provisional assessment as ordered by him.

6. Heard Shri Anil B. Divan, Sr. Advocate, R. Sashidharan & L Maithili, Advocates for the appellants and Shri S. Kannan, Ld. D.R. for the Revenue.

7. Ld. Sr. Advocate recalls the basic points involved in this appeal while passing our Miscellaneous Order No. 796/98 and Stay Order No. 1168/98 dated 3.12.98 in this matter. The appellants submit that the Ld. Commissioner had erred in adjudicating the said show cause notice when the matter of provisional assessment had not yet been finalised by the jurisdictional Assistant Commissioner and therefore his finding was erroneous in law. Secondly, the appellants submit that once the Order-in-Original impugned is issued by this Ld. Commissioner, he becomes functus officio. Therefore his directions to the Executive Commissioner to inform him after the provisional assessments are finalised so that he can continue with the adjudication of the show cause notice is wrong in law. Ld. Sr. Advocate submits that the correct procedure in law would be that if either side is aggrieved by the order finalising the provisional assessment, they could seek legal remedy before the next Appellate Authority concerned. Therefore, the purport of this Order-in-Original impugned tantamounts to the Ld. Commissioner also acting as an Appellate Authority by seeking to continue to adjudicate after the finalisation of the provisional assessment.

8. Ld. Sr. Advocate had also brought to our notice that against another Order-in-Original finalising certain aspects of provisional assessment passed by the jurisdictional Assistant Commissioner, some of which matter were common to this show cause notice issued, an appeal was pending before the Ld. Commissioner of Appeals, Bangalore. Ld. Sr. advocate had submitted that unless all proceedings are linked up, if Ld. Commissioner (Appeals) proceeds to pass an Appellate order,