9911796707
TMI Blog2015 (10) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... that this Tribunal vide interim order dated 22.6.2007 had directed to deposit the duty demand within a period of 6 weeks from the date of order and report compliance on 2.8.2007. The assessee challenged this order before the Hon'ble High Court of Madhya Pradesh and the Hon'ble Court vide order dated 2.8.2007 in W.P. 3537/2007 passed interim order directing that the appeal filed before the Tribunal shall not be dismissed for non-depositing of the amount as directed vide order of Tribunal dated 22.6.2007. The case has been since pending before this Tribunal. Though several notice were issued the assessee or counsel has not turned up. It is seen that notices by registered post with A/D have been issued to the assessee by marking copy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the opinion that no purpose will be served by keeping the appeal pending on the file of this Tribunal. Further by order of the Hon'ble Court dated 08.4.2015 the Tribunal is directed to consider and decide the appeal on merits. The order was brought to out notice by Department only on 5.8.2015, by producing a photocopy. The certified copy of the order of the Hon'ble Court is not produced. None has appeared for the assessee. It is seen that the Hon'ble Court had directed the Tribunal not to dismiss the matter for non-deposit of the amount as per interim order passed by the Tribunal on 22.6.2007. There is no stay in disposing the appeal on merits. This is clarified by subsequent orders dated 8.4.2015 and 13.5.2015. What is stay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chased by M/s Vamptex Traders, Coimbatore. It is the departments' case that assessee did not intimate them about the court proceedings initiated by M/s TFL, or the removal of the goods by way of sale to M/s Vamptex traders. When the department came to know about removal of goods investigation was conducted and separate Show Cause Notice were issued to the assessee, M/s TFL and M/s Vamptex Traders. Original authority passed order confirming the duty demand of Rs. 33,65,344/- against assessee. Penalty was not imposed on any of the noticees. The assessee filed appeal and vide impugned order the Commissioner (Appeals) taking into account that the machine was warehoused in the premises of the appellant till 31.5.1998 and removed in October, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) The machine was imported by filing a B/E on joint basis, by assessee and M/s TFL, as the machine was purchased under a Hire Purchase agreement. That being a H. P. agreement the ownership of the goods remained with M/s TFL. The machine was subsequently recovered by M/s TFL under a Court order. Therefore it is M/s TFL being the real owner who are liable to pay the duty. (b) That the assessee has not intentionally removed the goods. Due to default in installments M/s TFL approached the Mumbai High Court and obtained orders for recovery in an Arbitration Proceeding against the assessee. As there is no intentional removal, and the machine being removed under a court order, there is no violation of the provisions of the notification. (c) It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods is transferred to the hirer by the financier at the time of entering into the hire purchase agreement with a facility to pay the price in installments. The ownership in goods passes to the hirer only on payment of the last installment. The hirer has an option to purchase the goods at any time during the term of agreement by paying the entire installments. In the instance case, the assessee defaulted the installments and through a court order, the machine was recovered/taken possession of by M/s TFL. Therefore the argument that the responsibility to pay the duty is shifted to M/s TFL does not hold any water. The liability to pay the duty arises from the bond executed by the assessee with the Department obliging to abide by the conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Other Taxes, duties, levies, cesses, all outgoing etc." Thus sale was subject to payment of customs duty. (Annexure X). 11. M/s Vamptex Traders having taken over the goods which are liable to customs duty, being successor of the defaulting importer is liable to meet the dues. As per the proviso to Section 142 inserted by Act No. 23 of 2004, the successor of defaulter would also be held liable. The department has failed to raise any demand of duty against M/s Vamptex Trader in the SCN issued on 28.6.2005. The Commissioner (Appeals) observed that the assessee could take steps against M/s Vamptex traders to recover the amount paid. The adjudicating authority has committed a grave error by not proceeding against M/s Vamptex Trader for demand ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
