2001 (6) TMI 331 - AT - Central Excise

Summary

Issues:
1. Mis-declaration of goods' origin
2. Recovery of differential duty
3. Imposition of penalties
4. Provisional assessment and issuance of show cause notice
5. Non-levy of penalties by the Commissioner

Analysis:

1. The case involved the mis-declaration of goods' origin by M/s. Orkay Silk Mills Ltd., who imported Polyester Chips declaring them as Yugoslavian but were later found to be of Italian origin. The Collector of Customs issued a show cause notice seeking recovery of differential duty and penalties on various parties involved. The Commissioner concluded that M/s. Orkay Silk Mills Ltd. and their directors were not involved in the mis-declaration, refraining from imposing penalties on them. The indenting agent and the carrier of the goods were also not penalized, except for the recovery of differential duty.

2. The Central Board of Excise & Customs reviewed the order and argued that there was sufficient evidence implicating the concerned parties in creating the fraud to take advantage of concessional duty rates for goods of Yugoslavian origin. The issue of recovery of differential duty was confirmed, and a determination was sought regarding the alleged involvement of the noticees in the fraud.

3. The Tribunal addressed the procedural aspect of the case, questioning the validity of the show cause notice issued during provisional assessments. Citing previous judgments from various High Courts and the Supreme Court, it was established that show cause notices issued during provisional assessments were not valid. The Tribunal found that in the present cases, the issuance of the show cause notice was unwarranted due to the provisional nature of the assessments, leading to the dismissal of the appeals challenging the non-levy of penalties by the Commissioner.

4. Ultimately, as the non-levy of penalties was the sole ground of appeal, and considering the legal precedents regarding provisional assessments and show cause notices, the Tribunal found no merit in the appeals and dismissed them accordingly.