Custom, Excise & Service Tax Tribunal
Gitanjali Gems Ltd vs Commissioner Of Customs, (Acc & Imp), ... on 14 August, 2008
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. II Application No. C/S/1072, 984, 1159, 1160/08 in Appeal No. C/730,656, 756, 757/08 (Arising out Order-in-Original No. 55/2008/CAC/CC/KS dated 31.1.08 passed by the Commissioner of Customs (Adjn), Mumbai) For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr.K.K.Agarwal, Member (Technical) ====================================================
1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
1. Gitanjali Gems Ltd.
2. Bababhai P. Desai
3. Rashmi Bhansali
4. Bhargava N. Vaidya Appellant Vs. Commissioner of Customs, (ACC & IMP), Mumbai Respondent Appearance:
Shri T. Viswanathan, Advocate for the appellant no. 1, 3 & 4 Shri Anil Balani, Advocate for appellant no. 2 Dr. Y.D. Banga, SDR for the respondent CORAM:
Honble Shri M.V. Ravindran, Member (Judicial) Honble Shri K.K.Agarwal, Member (Technical) Date of hearing : 14.8.2008 Date of decision : 14.8.2008 O R D E R No:..
Per: Shri M.V. Ravindran, Member (Judicial) All these stay applications are directed against Order-in-Original No. 55/2008/CAC/CC/KS dated 31.1.08 by which the adjudicating authority has finalised the assessment of the goods imported, confirmed the differential duty and confiscated the goods with an option to redeem them on payment of redemption fine and imposed penalties. Since all these applications are arising out of the same Order-in-Original they are being disposed of by a common order.
2. After hearing both sides for sometime on the stay petitions, we are of the view that the issue can be decided at this juncture itself. After waiving the pre-deposit of the amounts involved, we take up the appeal itself for disposal.
3. Considered the submission made by both sides and perused the records.
4. Ld. Counsel appearing for the main importer i.e. Gitanjali Gems draws our attention to the finding of the adjudicating authority as regards the confirmation of demand of duty and submits that the confirmation of demand of duty has arisen on the ground that the importers had produced licence which were subsequently ascertained as forged. It is his submission that on 20.2.98 they had produced another set of licences in replacement of the forged licence. It is his submission that since entire consignments were provisionally assessed at the time of clearance, these newly submitted licences could have been considered by the adjudicating authority while coming to a conclusion. It is his submission that adjudicating authority has not given any finding on the licence which was produced by them. He draws our attention to letter of 20.2.1998 and the reply made by them to the adjudicating authority. Mr. Anil Balani, advocate for one of the applicant on whom penalty has been imposed submits that the appellant herein was penalised under Section 112(a) for aiding and abetting of importation goods which are confiscated under section 111 (d) and 111(o) of the Customs Act 1962. It is his submission that the appellant herein was out of job and hence only introduced the licence holder to the purchaser and got a commission. He has not dealt with the licence in any manner.
5. On perusal of the Order-in-Original, we find that the main appellants plea as to consider the valid special import licence produced by them for provisional assessment, seems to have force. We find from the entire order in original that the Commissioner has not even noted this fact leave alone giving findings on the said plea. If the licences which were subsequently produced by the applicant were valid licence, the Commissioner could have finally assessed the goods against the said licence, as it is not in dispute that the imported goods were provisionally assessed. Since there are no findings, we do not wish to go into it and leave it to the adjudicating authority to come to a conclusion. Accordingly, we are of the view that the entire order needs to be set aside and we do so, as it has not considered the alternate plea made by the main appellant. The impugned order to the extent it confirms the demand of duty and imposes penalty in respect of the appellants herein, is set aside and the matter is remanded back to the adjudicating authority to reconsider the issue afresh after granting an adequate opportunity of hearing to the appellants herein.
6. Appeals allowed by way of remand.
(Dictated in Court) K.K.Agarwal M.V. Ravindran Member (Technical) Member (Judicial) sr 4