2003 (12) TMI 185 - AT - Customs

Summary

Issues:
1. Confirmation of duty against the respondent for specific months.
2. Legal validity of the order forfeiting the facility of payment of duty in instalments.
3. Imposition of penalty and interest.
4. Challenge of the order passed by the Additional Commissioner.
5. Dispute regarding payment of duty during the period of forfeiture.
6. Correctness of the order passed by the Commissioner (Appeals).

Issue 1: Confirmation of duty against the respondent for specific months
The duty was confirmed against the respondent for the months of September, October, and November 2000. The Range Superintendent ordered the respondent to pay duty consignment-wise from their PLA for the next two months. The respondents accepted this order and started paying duty on consignment basis, but the duty was discharged from their Cenvat account, which was not in accordance with the law. Non-payment of duty out of PLA would be considered as clearance of goods without payment of duty, leading to a notice proposing recovery of the duty, interest, and penalty.

Issue 2: Legal validity of the order forfeiting the facility of payment of duty in instalments
The Commissioner (Appeals) questioned the legality of the order dated 18-12-2000 by the Range Superintendent, which forfeited the facility of payment of duty in instalments. The Commissioner observed that the order was not passed by the designated proper officer, rendering it illegal. The Commissioner also noted that the order was issued without providing an opportunity of hearing to the appellant, citing a precedent from the Punjab and Haryana High Court.

Issue 3: Imposition of penalty and interest
The Additional Commissioner confirmed the payment of duty and imposed a personal penalty along with interest. The Commissioner (Appeals) challenged this decision, emphasizing the lack of proper procedure followed in issuing the order forfeiting the payment of duty in instalments.

Issue 4: Challenge of the order passed by the Additional Commissioner
The Revenue appealed against the order of the Commissioner (Appeals), arguing that the relief granted was based on the legality of the Superintendent's order, which was not directly contested by the appellant. The Revenue contended that the Commissioner (Appeals) exceeded the scope of adjudication by setting aside the Superintendent's order.

Issue 5: Dispute regarding payment of duty during the period of forfeiture
The Tribunal referred to a previous case where it was established that during a period of forfeiture, the assessee is required to pay duty from PLA only. Failure to do so would result in the clearance of goods without payment of duty. Based on this precedent, the Tribunal set aside the Commissioner (Appeals)'s order and remanded the matter for further consideration.

Issue 6: Correctness of the order passed by the Commissioner (Appeals)
The Tribunal found that the Commissioner (Appeals) erred in setting aside the Superintendent's order, which had already been accepted and acted upon by the respondent. The Tribunal concluded that the Commissioner (Appeals) did not have the authority to overturn the Superintendent's order, leading to the decision to remand the matter for a proper determination of the issue involved.