Custom, Excise & Service Tax Tribunal
Ms Him Teknoforge Ltd vs Ludhiana on 7 March, 2024
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
CHANDIGARH
REGIONAL BENCH - COURT NO. I
Customs Appeal No. 60097 of 2023
[Arising out of Order-in-Appeal No. LUD-EXCUS-001-APP-425-2022 dated
01.12.2022 passed by the Commissioner (Appeals), Ludhiana]
M/s Him Teknoforge Limited ......Appellant
Village Manpura, Solan Himachal Pradesh 174102
VERSUS
Commissioner of Customs ......Respondent
GST Bhawan, F Block Rishi Nagar, Ludhiana, Punjab 141001 APPEARANCE:
Present for the Appellant: Shri Joy Kumar, Advocate Present for the Respondent: Shri Anurag Kumar and Ms. Shivani, Authorized Representatives CORAM: HON'BLE MR. S. S. GARG, MEMBER (JUDICIAL) FINAL ORDER NO. 60088/2024 DATE OF HEARING: 23.02.2024 DATE OF DECISION: 07.03.2024 PER S. S. GARG The present appeal is directed against the impugned order dated 01.12.2022 passed by the Commissioner (Appeals) whereby the Commissioner has set aside the Order-in-Original and remanded the matter back to the original authority.
2. Briefly the facts of the present case are that the appellant is engaged in the manufacture of Rough/Machined Forgings duly 2 C/600097/2023 registered under Goods & Service Tax. The appellant procured EPCG licence No. 22300003106 dated 04.10.2018 issued by the office of the joint Director General of Foreign Trade, Govt. of India, Ministry of Commerce & Industry, Chandigarh for import of Machinery namely "YIYOU MAKE HMI SCREW PRESS - MODEL EPC 1600 PRESS WITH PARTS AND ACCESSORIES 3 & 2 STATION DIE BOLSTER, TOOLING & GRAPHITE LUBRICATION MACH" in terms of Notification No. 16/2015- CUS dated 01.04.2015 (as amended). The said notification provided exemption in respect of the following:
"(i) the whole of the duty of customs leviable thereon under the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) (hereinafter referred to as the said Customs Tariff Act), and
(ii) the whole of the additional duty leviable thereon under sections (1) (3) & (5) of Section 3 of the said Customs Tariff Act, when specifically claimed by the importer
(iii) the whole of integrated tax and the goods and services tax compensation cess leviable thereon under sub-section (7) and sub-
section (9) of section 3 of the said Customs Tariff Act:
Provided that the exemption from integrated tax and the goods and services tax compensation cess shall be available up to the 31st March, 2020."
3 C/600097/2023 The aforesaid EPCG Licence was registered with the CENTRALIZED LICENSING CELL ICD CONCOR Ludhiana vide No. 2230003106 dated 04.10.2018 bearing endorsement on the EPCG Licence.
3. The appellant placed order with M/s SHANGHAI YIYOU MACHINERY CO. LTD. No. 1 Jinxiao Mansion, 36 Biquan Rd. Shanghai, China for supply of the machinery as per the description mentioned in the EPCG Licence. The said machinery was supplied on the CIF value agreed to at Ludhiana Port vide Commercial Invoice No. OCID20180816-1 dated 16.08.2018. The aforesaid machinery was shipped by the seller in three No. of containers of M/s Maersk Line (India) Pvt. Ltd. (hereinafter referred to as "Maersk"). The details of the each container are reproduced as hereunder:
S.No. Container No. Weight (in Kgs)
1. MAEU4166635 22,500
2. MAEU4709500 25,000
3. MAEU4723411 24,500
Thereafter, the appellant filed the IGM No. 22055255 dated
18.09.2018 in respect of BL No. SZF18080151 dated 04.09.2018.
4. The consignment arrived at Mundra Port on 21.09.2018 and out of the three containers two containers i.e. (MAEU4709500 & MAEU4723411) were railed out from Mundra Port to ICD, Ludhiana which reached on 01.10.2018. But the third container i.e. 4 C/600097/2023 (MAEU4166635) was held at Mundra port due to excess weight in actual. Thereafter, the matter was taken up by the shipper with the custom authorities and the Superintendent, MCD, Custom house vide his office letter dated 18.01.2019 intimated that the amendment as sought has been permitted manually by the Principal Commissioner, Mundra and thereafter the container was transported by road for ICD, Ludhiana which reached ICD Ludhiana on 01.02.2019. Thereafter, the appellant filed bill of entry for clearance of the Machinery in respect of all the three containers. The said bill of entry was assessed to duty along with fine of Rs. 12,15,000/- which was duly deposited by the appellant.
5. Feeling aggrieved with the assessment of Bill of Entry the appellant filed appeal before the Commissioner (Appeals) challenging the imposition of fine of Rs. 12,15,000/- without any reason.
6. The Commissioner (Appeals), after considering the submissions of the appellant set aside the imposition of fine of Rs. 12,15,000/- but still remanded the case back to the original assessment authority to pass a speaking order within 30 days but the said order of the Commissioner (Appeals) directing the original authority to pass a speaking order has not been complied by the original assessment authority till date.
7. Aggrieved by the said order of the remand, the appellant has filed the present appeal.
8. Heard both the parties and perused the record.
5 C/600097/2023
9. Ld. Counsel appearing on behalf of the appellant submits that the impugned order to the extent of remanding the matter back to the original authority is not sustainable in law. He further submits that once the Commissioner found that there is no basis for imposition of fine/penalty and accordingly set aside the same. Thereafter, there was no need for remanding the matter back to the original authority for passing the fresh order. He further submits that the lower authority till date has not complied with the directions of the Ld Commissioner (Appeals) and more than one year has elapsed from the passing of the impugned order.
10. He further submits that there is no lapse/delay on the part of the appellant as soon as all the three containers reached at Ludhiana, ICD. Thereafter, only he can file the Bill of entry and the same was filed. He further submitted that the appellant has also suffered demurrage for the fault of the shipper. He further submits that there was sufficient cause for delay in the present case because the third container was held up at Mundra port on account of excess weight which was subsequently permitted by the Commissioner to ship the same to ICD, Ludhiana and in the said process the delay was caused for which the appellant cannot be blamed. He further submits that nothing has been brought on record by the department to show that there was any intention to delay in filing the bill of entry which was filed immediately on arrival of third container at ICD, Ludhiana.
11. On the other hand, Ld. AR reiterated the findings of the impugned order and submitted that the penalty of Rs. 12,15,000/-
6 C/600097/2023 was imposed because there was a delay in filing the bill of entry and the said penalty is generated by the system itself and the original authority has no discretion to drop the said penalty.
12. After considering the submissions of both the parties and perusal of material on record, I find that in the present case there was no intention on the part of the appellant for delaying the taking of delivery from ICD, Ludhiana. The fact of the matter is that out of three containers mentioned (Supra) two containers reached earlier and one container was held up at Mundra port on account of excess weight which was subsequently resolved by according the permission to carry the third container to ICD, Ludhiana. Further, I find that once the Ld. Commissioner has recorded the findings that there is no basis as apparent on record to impose the penalty of Rs. 12,15,000/- then it was incumbent for the Ld. Commissioner to set aside the same and there was no reasons to remand the same to the original authority.
13. In this regard, it is pertinent to reproduced the said findings of the Ld. Commissioner (Appeals) as contained in para 3.2 and it is reproduced here in below:
"3.2. I find that no speaking order has been passed in the instant case & accordingly, no reason has been assigned by the assessing authority as to under which section of the Customs Act, 1962, the penalty of Rs.12,15,000/- has been imposed on the appellant. I find that same plea has been taken by the appellant in its appeal memorandum. I further observe that the appellant cannot give its defence till it knows under which Section the penalty has been imposed by the assessing authority, accordingly, the non issuance of speaking order violates the principle of natural justice.
7 C/600097/2023 Further, there is no records available for issuance of any show cause notice or personal hearing was given to the appellant, before imposition of penalty of Rs.12,15,000/-. Accordingly, in view of above discussions, I am left with no other option but to remand the proceedings back to the original assessment authority to issue a speaking order in impugned bill of entry within 30 days of issue of this order after giving personal hearing to the appellant".
14. Further, I find that the remand order of the Ld. Commissioner (Appeals) has not been complied with by the original authority till date without any reason.
15. In view of these circumstances, I am of the considered view that there is no justifiable reasons for imposition of penalty of Rs. 12,15,000/- and to this extent I upheld the order of the Ld. Commissioner (Appeals) and to set aside the impugned order to the extent of remanding the matter back to the original authority. The appeal is accordingly, allowed on above terms.
(Order pronounced in the open court on 07.03.2024) (S. S. GARG) MEMBER (JUDICIAL) Kailash