Custom, Excise & Service Tax Tribunal
Commissioner Of Customs (Export), ... vs M/S Hotel Sahil Pvt. Ltd on 20 January, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
COURT NO. I
Application No. C/COD/95891/13 in Appeal No. C/87294/13
C/S/95736/13
(Arising out of Order-in-Appeal No. 100(Gr.VIIG)/2013(JNCH)/EXP-08 dated 11.08.2013 passed by the Commissioner of Customs (Appeals), JNCH, Nhava Sheva ).
For approval and signature:
Honble Shri P.R. Chandrasekharan, Member (Technical)
Honble Shri Anil Choudhary, 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 : 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? ====================================================== Commissioner of Customs (Export), Nhava Sheva Appellant Vs. M/s Hotel Sahil Pvt. Ltd. Respondent Appearance: Shri K.S. Mishra, Addl. Commissioner (AR) for Appellant None for Respondent CORAM: SHRI P.R. CHANDRASEKHARAN, MEMBER (TECHNICAL) SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) Date of Hearing: 20.01.2014 Date of Decision: 20.01.2014 ORDER NO. Per: P.R. Chandrasekharan
The COD application and stay petition has been filed by the Revenue against Order-in-Appeal No. 100(Gr. VIIG)/2013(JNCH)/EXP-08 dated 11.08.2013 passed by the Commissioner of Customs (Appeals), JNCH, Nhava Sheva. Vide the impugned order, the lower appellate authority modified the assessment in Bill of Entry No. 7695182 dated 17.8.2012 filed by the importer M/s Hotel Sahil Pvt. Ltd. and ordered for auditing the same by the proper officer (under Section 17(6) of the Customs Act, 1962). Aggrieved of the same, the Revenue is before us.
2. There is a delay of 18 days in filing the appeal and it has been stated that this is due to burden of work in the concerned section which was also dealing with several other matters. Considering the reason stated as satisfactory, we allow the application for condonation of delay.
3. As per the grounds of appeal urged in the appeal memorandum, it is stated that the Commissioner (Appeals) has not appreciated the provisions of sub-section (6) of Section 17 which empowers audit team to undertake audit only in a case where re-assessment has not been done or in a case where speaking order has not been passed on re-assessment. It is contended that post clearance audit does not involve issue of any speaking order on any issue having revenue implication. It is also urged that in the due result of self assessment, the proper officer can order for re-assessment under Section 17(4). Only when the reassessment is contrary to self assessment, speaking order needs to be issued under Section 17(5). Section 17(6) does not envisage passing of any speaking order and, therefore, the direction of the lower appellate authority in directing the proper officer to audit the Bill of Entry and thereafter, passing the speaking order is incorrect in law.
4. The learned Addl. Commissioner (AR) appearing for the Revenue reiterates the grounds urged in the appeal memorandum.
5. The appellant has requested that the appeal be disposed of on merits taking into account the facts and circumstances of the case.
6. We have carefully considered the submissions and the grounds urged in the appeal memorandum. We are of the view that the appeal itself can be disposed of at this stage as the issue lies in a narrow compass. Therefore, with consent of the Revenue, we take up the appeal for consideration and disposal.
6.1 From the records, it is seen that the appellant imported marble slab under EPCG Licence No. 0330032770 dated 29.2.2012. As per the EPCG scheme, the appellant was liable to pay import duty @ 3% ad valorem and they were not required to discharge CVD or SAD. However, the Bill of Entry was filed and assessed by the importer under self assessment scheme and they discharged the duty liability of CVD and SAD. Realizing the mistake, the importer wrote to the Commissioner immediately after clearance of the goods vide letter dated 4.10.2012 seeking re-assessment of the Bill of Entry in terms of Notification No. 103/2009-Cus. However, the department refused to reassess the Bill of Entry only on the ground that the goods have been taken delivery of. In appeal, the learned Commissioner (Appeals) observed that the department should have reassessed the Bill of Entry and passed a speaking order. He also observed that the appellant was eligible for benefit of Notification No. 103/2009, which prescribed a concessional basic customs duty of 3% along with exemption from CVD and SAD and, therefore, the appellant was not required to pay CVD or SAD on the imports made by them. Accordingly, he modified the order of assessment and directed that the Bill of Entry be audited by the proper officer under section 17(6) and thereafter pass a fresh order, if reassessment is warranted.
6.2 It is not in dispute that the appellant is eligible for benefit of Notification No. 103/2009-Cus. If that be so, we do not understand why the Revenue is aggrieved by the order of the lower appellate authority, who has merely directed them to audit the Bill of Entry and reassess the same, if required. Therefore, we do not find any infirmity in the impugned order.
7. Accordingly, we dismiss the appeal filed by the Revenue as devoid of merits.
(Dictated and pronounced in Court)
(Anil Choudhary) (P.R. Chandrasekharan)
Member (Judicial) Member (Technical)
Sinha
4