Customs, Excise and Gold Tribunal - Bangalore
Shanti Alloys Pvt. Ltd. vs Cc on 16 August, 1999
Equivalent citations: 2000(90)ECR738(TRI.-BANGALORE)
ORDER V.K. Ashtana, Member (T)
1. In this appeal, the appellants are before us being aggrieved by two communications received by them as follows:
(a) Letter dated 10.6.1999 issued by the Appraiser of Customs, Inland Container Depot, Bangalore, on behalf of the Assistant Commissioner informing the appellants that with respect to their letter dated 5.6.1999 to the ICD, their request for mutilation of the cargo imported by them under Bill of Entry No. 7086 dated 11.5.1999 and 7083 dated 10.5.1999 has been rejected. In the alternative, the appellants have been asked to execute PD bond covering the value of the goods with 100% Bank Guarantee for the differential duty + 10% of the value, so that they could secure provisional release of these goods from the ICD, pending further proceedings under law.
(b) A letter No. C. No./VIII/6/14/99/ICD dated 16.6.1999 issued by the Commissioner of Customs, Bangalore to the appellants with respect to their petition dated 12.6.1999 seeking review of the decision by the lower authorities at (a) above. Therein, the learned Commissioner has given three reasons for rejecting the appellants request for mutilation of the steel sheets imported by them. One of the reasons is that investigations were still continuing. Therefore, the offer of getting the goods provisionally released under bond and bank guarantee as noted at (a) above has been reiterated.
2. Heard Sri R. Sudhakar, learned advocate for the appellants. He submits that aggrieved by these appellants approached the Hon'ble High Court of Karnataka, Bangalore, vide Writ Petition No. 20307/99, in consideration of which vide their order dated 29th June, 1999, the Hon'ble High Court directed the appellants to file an appeal before us within a week's time and to move for stay or any other interim order, as the Hon'ble High Court found it not proper to interfere in the matter at that stage. The Writ Petition was accordingly disposed of.
3. The learned advocate submits that they are, therefore, before us and briefly the matter concerns the import of bushelling scrap which is to be remelted in the furnace of their registered unit. He submits that the material has already incurred heavy demurrage and the appellants are continuously suffering great loss and hardship in view of this. He submits that they are not in a position to furnish 100% bank guarantee in view of the heavy losses already incurred in the form of demurrage charges. He, therefore, prays under Rule 41 of CEGAT (Procedure) Rules, necessary directions may be given by this Tribunal to the lower authorities to meet the ends of justice so that the recurring demurrage liability is immediately negatived. He submits that this appeal as well as the prayer is in terms of the directions received by the appellants in the said order of the Hon'ble High Court noted above.
4. Heard Sri S. Kannan, learned D.R., who submits that as per the instructions received from the Commissionerate, vide their letter dated 9.8.1999, a copy of which is filed by the learned D.R. in the Court, while the Commissionerate has recorded that there is no objection from their side for this Tribunal hearing the said appeal, however, they have prayed that since investigation is still under progress, the Tribunal may direct the petitioner to take provisional clearance of the goods after furnishing bank guarantee etc. as per the two letters noted above. The learned D.R. therefore, submits that the matter being still under investigation, obviously the lower authorities are not in a position at this stage to finalise the assessment with respect to these goods and have therefore, as per the procedure provided Under Section 18 of the Customs Act, 1962 given an opportunity to the appellants to get the goods provisionally released under provisional assessment by executing a bond with bank guarantee as indicated in these two letters noted above. Therefore, he submits that since these letters are only orders pertaining to provisional assessment and provisional clearance, they are not final orders and are, therefore, not appealable before the Tribunal in terms of Section 129A(l)(a), as they are not orders passed by the Commissioner of Customs as an adjudicating authority (emphasis supplied by us). He cites the case of Ahura Chemical Products Pvt. Ltd. v.CCE as , wherein it has been held that the order of provisional assessment being an interim in nature, no appeal would lie against it as it could not be maintainable under Section 35B of the Central Excise & Salt Act, 1944. The learned D.R. submits that this decision is involving facts which are identical to the present issue and the said section is totally pari materia with Section 129A of the Customs Act and therefore, the ratio thereof has to be applied in this case.
5. We have considered rival submissions and records of the case. We find that in both the letters mentioned at sub-para (a) & (b) above, the department has clearly indicated that the investigations on the goods imported are still continuing. The same position has again been reiterated by the Commissionerate vide their letter dated 9.8.1999 to the learned D.R., which is now on our record as noted above. Therefore, we find that the picture that clearly emerges before us is that the goods imported are under subject to scrutiny in investigation and hence, the Commissionerate of Customs is presently not in a position to finally assess the goods on merits. Therefore, in consideration of the appellants request for release of goods to avoid demurrage, the Commissionerate has offered provisional release after provisional assessment Under Section 18 ibid on the above terms & conditions. We do understand that unfortunately to the appellants, these conditions appears to be harsh and causing injury. However, in view of the aforesaid facts, we find that both the letters upon which the appellants are in appeal before us, are merely interim orders proposing provisional assessment and provisional clearance Under Section 18 ibid.
6. In this connection, we are of the considered view that this Tribunal is a creature of the law namely Customs Act, 1962 etc. Section 129A(l)(a) thereof clearly lays down that the jurisdiction of this Tribunal would only commence when an order by a Commissioner of Customs acting as an adjudicating authority is agitated before it. In this case, the order even of the Commissioner of Customs, as we have found above, is only an interim order of provisional assessment and provisional release. Therefore, the appellants have not been able to cross the first bridge of provisions of Section 129A(l)(a) before us, inasmuch as that the cause of action is not satisfied in terms of availability of this Tribunal's jurisdiction under law. The learned advocate has prayed for an order under Rule 41 of the CEGAT (Procedure) Rules. We find ourselves unable to accede to his request for consideration of this prayer as this rule is subordinate to Section 129A(1)(2) and only after it is found by us that the Tribunal has jurisdiction under this section that we can consider any prayer under Rule 41 etc. In this connection, we find that this issue has already been considered by the Tribunal in the case of Ahura Chemical Products Pvt. Ltd. cited supra, wherein it was held that an order of provisional assessment under Central Excise Act would be an order of interim in nature and therefore, would not be appealable before the Tribunal. Section 129A is pari materia to Section 35B of the Central Excise Act and therefore, we find that since here also the provisional assessment is involved, therefore, the ratio of the said decision would clearly be applicable to the facts of this case.
7. In view of the above analysis and findings, with great respect, we are unable to entertain and admit this appeal before us. Hence, following the ratio of the above decision, we have no other alternative under law but to reject this appeal on the ground of non-maintainability due to lack of jurisdiction.
8. The Miscellaneous application is also disposed of accordingly.
(Pronounced & dictated in the open court).