TMI Blog2009 (10) TMI 492X X X X Extracts X X X X X X X X Extracts X X X X ..... without jurisdiction. - 8315 of 2009 - - - Dated:- 16-10-2009 - <?xml:namespace prefix = st2 /> Ferdino I. Rebello and D.G. Karnik, JJ. S/Shri J.J. Bhat, Sr. Counsel, Prakash Shah and Jas Sanghvi, for the Petitioner. S/Shri P.S. Jetly with R.B. Pardeshi, for the Respondent. [Judgment per : Ferdino I. Rebello, J. (Oral)]. - Rule : By consent, heard forthwith. 2. The question that arises for consideration in this petition is paragraph no. 9 of the Circular No. 11/01-Cus., dated 23rd February, 2001 issued by Central Board of Excise and Customs, New Delhi. The relevant paragraph reads as under :- "9. The amount be continued. Board has however decided that if the importer does not furnish complete reply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll passenger cars including the right to use trade mark "SKODA" in India. As per the said TTA, the petitioners were liable to pay Skoda Auto a lump sum consideration of 45 Million US$ by way of royalty in six different instalments. There is no dispute that the petitioners are a subsidiary of Skoda Auto. The said amount of consideration was paid in six different instalments. The last instalment was paid on 31st December 2006. The petitioners do not dispute that Skoda Auto is a related person within the meaning of Rule 2(2) of the Customs Valuation (Determination of Value of Imported Goods) Rules, 1988. They therefore filed necessary application with GATT Valuation Cell of Bombay Customs House on 18th April, 2002. By an order dated 10th June, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... November, 2007, the petitioner requested the Special Valuation Officer to renew the order dated 10th June, 2003. 8. A show cause notice dated 31st January, 2008 has been served on the petitioner and the petitioner were called upon to show cause as to why the differential customs duty amounting to Rs. 97,15,54,000/- should not be paid by the petitioner in terms of proviso to sub-section (1) of Section 28 of the Customs Act along with applicable interest u/s. 28AB and u/s. 114A of the Customs Act. 9. By a letter of 1st February, 2008, the Dy. Commissioner of Customs, GATT Valuation Cell informed the Addl. Commissioner of Nhava Sheva that he had been directed to state that the SVB order No. 123/03 dated 10th June, 2003 has not been renewed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is submitted that there is no justification or change in the circumstances of the case warranting the abrupt withdrawal or the waiver of 1% revenue deposit and insisting on payment of 1% deposit. Considering the circular dated 23rd February, 2001, the withdrawal therefore it is submitted is arbitrary. Apart from that, no opportunity was given to the petitioner before the impugned communication of 23rd September 2009. For all the aforesaid reasons, it is submitted that communication dated 23rd September, 2009 is a nullity at law. 13. Reply has been filed on behalf of the respondent by Mr. Rajiv Garg, Assistant Commissioner of Customs GATT Valuation Cell. The principal contention is that during the investigation it was found that the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gulation 2 in the event the proper officer of Customs on account of any of the grounds specified in Section 18(1) is not able to make final assessment of the duty on the import of goods or export of goods as the case may be, shall make an estimate of the duty that is most likely to be levied which is referred to as provisional duty. If the importer or exporter as the case may be, executes a bond in an amount equal to the difference between the duty that may be finally assessed and the provisional duty and deposits with the proper officer such sum not exceeding twenty per cent of the provisional duty as the proper office may direct, the proper officer may assess the duty on the goods provisionally. This discretion in the proper officer, howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for the proper officer of customs to demand security which such proper officer has demanded. In our opinion, it will not be possible to accept the aforesaid contention of the respondents. Firstly, the discretion earlier confirmed by Regulation 2 is now subject to the Board regulation. The board regulation restricts the amount of revenue deposit at 1 per cent. This was within the jurisdiction of the Board. As per the law declared by the Supreme Court, the Board circulars are binding on the officer including the proper officer of customs. The discretion of such officer is now limited by the said Board circular. It is not open to claim more than one percent. This demand of one per cent is further subject to paragraph no. 9 of the circular wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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