Custom, Excise & Service Tax Tribunal
Fabtech Projects & Engineers Ltd vs The Commissioner Of Customs (Import) on 22 July, 2009
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No.II APPEAL No.C/504/09 Appln.No.C/EH/1261/09 C/S/844/09 (Arising out of Order-in-Original No.CAO No.55/2009/CAC/CC(I) SHH/Gr.IV dated 25/03/2009 passed by Commissioner of Customs (Import), Mumbai) For approval and signature: Honble Mr.A.K.Srivastava, Member (Technical) Honble Mr.Ashok Jindal, Member (Judicial) ====================================================
1. Whether Press Reporters may be allowed to see : No 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 : Yes authorities?
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Fabtech Projects & Engineers Ltd., Appellant
Vs.
The Commissioner of Customs (Import),
Mumbai Respondents
Appearance:
Shri.Vishal Agarwal, Advocate for the Appellants
Shri.P.K.Agarwal, SDR for the Respondents
CORAM:
Mr.A.K.Srivastava, Member (Technical)
Mr.Ashok Jindal, Member (Judicial)
Date of hearing : 22/07/2009
Date of decision : 22/07/2009
O R D E R No:..
Per: Ashok Jindal
1. This appeal along with stay petition and application for early hearing is filed by the appellant against the order of the Commissioner, wherein redemption fine of Rs.4.00 crores was imposed along with penalty of Rs.5.00lakhs on the importer/appellant.
2. Although today, the matter is fixed for disposal of the stay petition and application for early hearing but after hearing both sides at length, it is seen that the appeal itself can be disposed of at this stage. Accordingly, the application for early hearing is disposed off and the appeal is also taken up for disposal.
3. The brief facts of the case are that the appellant filed eight Bills of Entry, out of which five were facilitated under RMS, without assessment by the Group and were out of charged. One Bill of Entry was assessed by the Group, provisionally, with ITC bond. Two Bills of Entry are pending for assessment with the Group. The importer imported Hot rolled plates under CTH 7208, which are restricted by Notification No.63/(RE-2008)/2008-2009 dated 24/11/2008 read with the clarification issued by the DGFT vide its letter No.01/89/180/46/AM09/PC-II (A) Pt. dated 18/02/2009. Since the subject goods were restricted, the same required a specific import licence for their clearance. Since the appellant did not submit the required licence at the time of clearance of the goods, it was held that they had violated the provisions of Exim policy and the goods are rendered liable to confiscation under Section 111 (d) of the Customs Act, 1962.
4. A show cause notice was issued and on adjudication the redemption fine and penalty were imposed as referred to above. Aggrieved by the same, this appeal has been filed before us.
5. During the course of arguments today, Shri Vishal Agarwal, Ld. Counsel for the appellant submitted that as per the Policy Circular No.83(RE-2008)/2004-2009 dated 29/04/2009, it was clarified that the import clearance without a licence may be allowed for the item, Hot Rolled Products not in Coils covered under ITC (HS) Code 7208, which has been imported during the period 21/11/2008 to 18/02/2009.
6. The Ld. Counsel for the appellant submits that the appellant had filed the Bills of Entry on 16/02/2009, the date on which the appellant was not required to submit the import licence to import the impugned goods as per the Policy Circular dated 29/04/2009.
7. We find that the adjudicating authority has passed the order on 25/03/2009, much before the Policy Circular dated 29/04/2009.
8. In our view, it will be appropriate to remand the matter back to the original adjudicating authority in order to enable him to pass appropriate orders in accordance with law after examining the Policy Circular dated 29/04/2009 placed before us by the Counsel for the appellant today and after hearing the appellant.
9. The stay petition is allowed and the matter is remanded back to the original adjudicating authority with the directions to pass appropriate orders within fifteen days of the receipt of this order after following the principles of natural justice and taking into consideration the Policy Circular dated 29/04/2009.
(Pronounced in Court) (A.K.Srivastava) Member (Technical) (Ashok Jindal) Member (Judicial) pj 1 4 2