Custom, Excise & Service Tax Tribunal
Vazir Polymers Ld vs Commissioner Of Customs (Import), ... on 18 April, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. I Application No. C/Stay-1899/09 and Appeal No. C/1229/09 (Arising out of Order-in-Appeal No. 482 (Gr. IIC&D)/2009 (JNCH)/IMP-114 dated 39.9.3009 passed by Commissioner of Customs (Appeals), Mumbai II.) For approval and signature: Honble Mr.P.G. Chacko, Member (Judicial) Honble Mr. Sahab Singh, Member (Technical) ======================================================
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 :Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== Vazir Polymers Ld Appellant (Represented by: Mr. Dhaval K. Shah, Advocate) Vs Commissioner of Customs (Import), Mumbai Respondent (Represented by: Mr. V.K. Singh, SDR ) CORAM:
Honble Mr.P.G. Chacko, Member (Judicial) Honble Mr. Sahab Singh, Member (Technical) Date of Hearing : 18.04.2011 Date of Decision: 18.04.2011 ORDER NO..
Per: P.G. Chacko
1. The stay application seeks waiver of pre-deposit and stay of recovery in respect of the duty of over Rs 1.26 crores. After examining the records and hearing both sides, we find this case fit for summary disposal. Accordingly, after dispensing with pre-deposit, we take up the appeal.
2. The learned counsel for the appellant submits that the Appellate Commissioners order impugned in this appeal relied on Order-in-Appeal No. 67/2005 (JNCH) dated 8.6.2005 which has since been set aside by this Bench vide order No. A-292/10/CSTB/CII dated 13.8.2010 in appeal C/883/05 (Vazir Polymers Ltd vs CC(I) Mumbai II). It is submitted that the appellant had imported 83 consignments of (LDPE/HDPE mixed granule/powder Floor Sleepings) from Kuwait and the same was provisionally assessed to duty. It is submitted that, by an order dated 27.6.2001, the jurisdictional Additional Commissioner of Customs had directed the goods to be valued at US$ 352.35 per MT (CIF) for the purpose of assessment. The Additional Commissioners order was set aside by the Commissioner (Appeals) in an appeal filed by the assessee. The Appellate Commissioners order was reviewed and accordingly an appeal was preferred by the department to this Tribunal. The Tribunal, by order dated 1.6.2004, set aside the Appellate Commissioners order and remanded the case to the lower appellate authority, whereupon the learned Commissioner (Appeals) passed Order-in-Appeal No. 67/2005 (JNCH) dated 8.6.2005 rejecting the assessees appeal against the order-in-assessment dated 27.6.2001. Once again aggrieved, the assessee preferred appeal No. C/883/05 which was allowed by this Bench by way of remand vide order dated 23.8.2010.
3. Meanwhile, the Assistant Commissioner of Customs finalized the assessments by order dated 12.2.2009 as recommended in the Additional Commissioners order-in-assessment dated 27.6.2001. The Assistant Commissioner also quantified the differential amount of duty at Rs 1,26,98,122/- on the assessable value based on unit price of US$ 352.35 per MT. The Assistant Commissioner, in his order dated 12.2.2009, noted that the jurisdictional Commissioner of Customs (Appeals) had upheld order-in-assessment dated 27.6.2001 and dismissed the assessees appeal by order-in-appeal No. 67/2005 dated 8.6.2005. He also noted that the appeal filed by the assessee against Order-in-Appeal No. 67/2005 ibid was pending and that the said Order-in-Appeal had not been stayed by this Tribunal. Apparently, in the circumstances, the Assistant Commissioner proceeded to finalize the assessments as above.
4. In the assessees appeal against the Assistant Commissioners order dated 12.2.2009, the learned Commissioner (Appeals) did not find any reason to interfere with the impugned order. The Appellate Authority also noted the pendency of appeal No. C/883/05 against Order-in-Appeal No. 67/2005. It also noted that there was no stay of operation of Order-in-Appeal No. 67/2005.
5. As rightly pointed out by the learned counsel and fairly acknowledged by the learned SDR, Order-in-Appeal No. 67/2005 dated 8.6.2005 ibid was set aside by this Tribunal in appeal C/883/05 and the assessment dispute remanded to the Commissioner (Appeals) for fresh decision in terms of the Tribunals earlier remand order No. A-347/WZB/2004/CII dated 1.6.2004.
6. In other words, the very foundation of Order-in-Appeal impugned in the present appeal of the assessee has collapsed with the setting aside of Order-in-Appeal No. 67/2005 and hence the impugned order requires to be set aside. Accordingly, we set aside the impugned order and allow this appeal by way of remand to the Commissioner (Appeals) for fresh decision in accordance with law and in terms of the earlier two remand orders passed by this Tribunal. Needless to say that the assessee should be given a reasonable opportunity of being heard.
(Dictated in Court.) (Sahab Singh) Member (Technical) (P.G. Chacko) Member (Judicial) rk 4