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2015 (10) TMI 831 - KERALA HIGH COURT

2015 (10) TMI 831 - KERALA HIGH COURT - 2015 (324) E.L.T. 112 (Ker.) - Waiver of pre-deposit - Dispute regarding deposit of Bank guarantee – Judgment held earlier directs petitioner to give a Bank Guarantee for 20% of the differential duty – Petitioner contends that all necessary documents with full information as per the statutory provisions certified by the Sri Lankan authorities have been produced and there cannot be any doubt regarding the origin of goods –Further held that condition for pro .....

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se the goods covered on condition of their executing Indemnity Bond agreeing and undertaking to pay the amount of differential duty imposed by the Customs authorities while making the final assessment, instead of Bank Guarantee – Order modified in favour of the Petitioner. - WA. No. 606 of 2015 In WP(C).6722/2015 - Dated:- 13-3-2015 - Ashok Bhushan, Ag. C.J. & A.M. Shaffique, J. For the Petitioner : Advs. Sri. Devan Ramachandran and Sri. Adarsh Kumar For the Respondent : Sri. N. Nagaresh, .....

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ential duty, while making provisional assessment in respect of certain consignments of Sri Lankan Arecanuts imported by the petitioners. 3. The facts involved in the Writ Petition would disclose that the petitioners have imported Sri Lankan origin Arecanuts by claiming the benefit of Notification No. 26/2000 dated 1.3.2000 (ISFTA Agreement). The Arecanuts are normally leviable to duty @ 108%, but if the benefit of Notification No.26/2000 is claimed, the duty is only 4%. In Exts.P30 to P32 orders .....

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provisional assessment has been made till the completion of required verification and enquiry. On that basis, provisional assessment has been made and the petitioners were called upon to release the goods on paying or giving guarantee for 35% of the differential duty. The learned Single Judge, by the judgment impugned, after taking into consideration the scope and effect of section 18 (1)(c) of the Customs Act, confirmed the order passed by the Commissioner of Customs with reference to ordering .....

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uty only for the reason that in a similar case DRI is conducting an investigation regarding the origin of the goods. Therefore, an enquiry is being conducted in respect of the origin of goods and the eligibility of the petitioners to avail the benefit of the notification. It is argued that as far as the petitioners are concerned, they have produced all the necessary documents with full information as per the statutory provisions certified by the Sri Lankan authorities and there cannot be any dou .....

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respondents supported the stand taken by the Commissioner of Customs and contended that the directions issued by the learned Single Judge is covered by the judgment of this Court in Mohammed Fariz and Co. v. Commissioner of Customs - 2012 (275) E.L.T. 303 (Kerala). That was a case in which the dispute was regarding valuation of Betel nuts imported by the importer, on the basis of which provisional assessment was made under section 18(1)(c) of the Customs Act, wherein this Court held at paragrap .....

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and also estimation of duty which according to the Officer is likely to be levied finally. So much of the duty determined based on the documents and claim of the party is the admitted duty which the party has to straightly remit. The duty provisionally determined is nothing but the duty which the Officer estimates over the duty admitted by the party as payable based on his estimation on the value, classification or the rate applicable, which is essentially a matter to be determined by the Offic .....

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nd to collect security for the balance of the provisional duty which under Regulation 4 is through execution of bond supported by surety or security or both as the Officer deems fit. But we feel from the past follies of the Department stated by the learned Standing Counsel that the proper Officers provisionally assessing duty are under misunderstanding on the scope of Regulation (4) which requires surety or security in support of the bond executed which is noting but an undertaking to pay duty o .....

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o that recovery is ensured without any necessity for the Department to chase the parties and looking for their assets. In fact, credentials of the importer/exporter and such other matters should weigh with the Department in relaxing the condition for security, which in the normal course should be bank guarantee." Apparently, the factual situation in the above case is different from the facts of the present case. 6. It is therefore submitted that since necessary enquiry has to be conducted i .....

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