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TMI Blog1997 (9) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification No. 152/77 within a period of 12 months from the date of clearance of the imported consignment of stainless steel plates. 2. At the outset, the learned SDR raises the preliminary objection to the maintainability of the appeal first to the lower Appellate authority and then to the Tribunal, submitting that the enforcement order is only administrative in nature and not an appealable order under the provisions of the Customs Act, 1962. However, in view of his submission that the enforcement order was an order passed in continuation of the assessment proceedings and that there was no separate order of assessment, we overrule the objection and hold that the appeal to the Collector (Appeals) under Section 128 of the Customs Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted goods, the sales invoices produced by them should be accepted as proof of consumption leading to consequential benefit of refund, cannot be accepted, particularly as no co-relation can be made between the imported raw material and the goods covered by the sales invoices. In the above circumstances, we see no reason to interfere, with the impugned order and accordingly confirm the same and reject the appeal. [Assent per : S.K. Bhatnagar, Vice President]. - With due respects to Hon'ble Member (J) my views and orders are as follows : 4. Ld. Counsel stated that they had claimed the benefit of exemption Notification No. 152/77 and it was allowed subject to the fulfilment of the conditions therein and for this purpose they had execut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 3.472 tons The notification does not prescribe any specific type of evidence of utilisation of the imported goods (S.S. sheets thicker than 16BG) to the produced. The appellant was producing certificate of utilisation of imported goods for the specified purpose from Chartered Accountant in similar cases which was being accepted by Customs. In this case also, such a certificate of utilisation from C.A. was produced. But the same was not accepted by the Collector of Customs (Appeals). 8. There is no allegation of any mis-use or diversion of the imported stainless sheets. A.C. may be directed to verify and accept the certificate of CA as evidence of end-use and then grant consequential refund. 9. As regards the SDR's po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onditions of the Notification are not fulfilled; hence, any order passed by the A.C. enforcing the bond under such circumstances is an order passed under the Act eligible to be taken up with Collector by way of appeal. Section 128 of the Act clearly provides that any person aggrieved by any decision or order passed under this Act by an officer of Customs lower in rank than a Commissioner of Customs may appeal to Commissioner (Appeals) within 3 months from the date of communication of such decision. Hence, the only condition to be fulfilled for filing an appeal are that the decision or the order should be one passed under this Act by an Officer of Customs lower in rank than Commissioner (A). These conditions are fully satisfied in this case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessment is revised, if such a revision is called for, or the earlier assessment is confirmed or such other appropriate order as may be necessary is passed; And where a differential duty demand arises in the process, the A.C. is required to thereafter, take steps to execute that demand; and encashment of bond or bank guarantee etc. is one of the ways of such enforcement. (In other words, it is not a continuation of assessment but a consequence of assessment proceedings). 15. Ld. DR is, correct in pointing out that such an action is basically executive in character. However, it is taken in pursuance of or as a consequence of assessment or adjudication proceedings under the Act and this aspect was required to be considered at the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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