TMI Blog2008 (4) TMI 665X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to be encashed. - Special Civil Application No. 6058 of 2008 - - - Dated:- 10-4-2008 - M.S. Shah and Akil Kureshi, JJ. REPRESENTED BY : Shri Paresh M. Dave, Counsel, for the Petitioner. Shri Harin P. Raval, A.S.G., for the Respondent. [Judgment per : M.S. Shah, J. (Oral)]. - RULE. Mr. Harin P. Raval waives service of Rule for the respondents. In this petition under Article 226 of the Constitution, the petitioner has challenged the order dated 4-3-2008 of the Customs Excise and Service Tax Appellate Tribunal, West Zonal Bench at Ahmedabad on Stay Application No. 03 of 2008 in Customs Appeal No. 01 of 2008. 2. The petitioner has challenged in the above appeal the order dated 26-10-2007 of the Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el for the petitioner has submitted that the Tribunal was not justified in applying the principle of res judicata because the previous litigation was against the provisional assessment and the findings given in such provisional assessment cannot bind the assessee at the time of final assessment. It is also submitted that the petitioner has invoked the statutory exemption in respect of demand of additional customs duty of Rs. 62,64,550/- and the petitioner s defence based on such statutory exemption cannot be set out on the ground that notification granting such exemption was not produced at the time of provisional assessment or in the litigation challenging the provisional assessment. 5. On the other hand, Mr. Harin P. Raval, learned Assi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect of the demand of Rs. 62,64,550/- by way of additional customs duty. 25% thereof would roughly come to about Rs. 15,66,137/- which may, for the sake of convenience, be rounded off to Rs. 15,60,000/-. The petitioner has already given bank guarantee of Rs. 7.60 lacs and therefore, we are of the view that the petitioner should now deposit a further sum of Rs. 8 lacs in cash within two months from today. We are also of the view that bank guarantee of Rs. 7.60 lacs lying with the department should be permitted to be encashed. 8. In the result, this petition is partly allowed. The impugned order dated 4-3-2008 of the Tribunal is substituted by the following order :- The department is permitted to appropriate basic customs duty of Rs. 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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