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2015 (10) TMI 2443 - CESTAT CHENNAI

2015 (10) TMI 2443 - CESTAT CHENNAI - 2016 (336) E.L.T. 135 (Tri. - Chennai) - Determination of value of imports made from overseas – Pre-condition of 5% of EDD – Appellant contended that directions of Commissioner (Appeals) can be limited to proceedings and cannot order 5% EDD – Revenue submits only 1% of extra duty deposit has been ordered till finalisation of provisional assessment. - Held That:- Relying on the orders given by Hon’ble High Courts in cases of Terumo Penpol Ltd. Vs. CC [201 .....

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in this appeal lies in a narrow compass, after disposing the stay petition, the appeal itself is taken up for disposal. 2. The present appeal is filed against the order of the Commissioner of Customs (Appeals) wherein he has set aside the OIO dated 03.06.2013 passed by the Dy. Commissioner of Customs (SVB), Chennai and remanded the matter to DC (SVB) to revisit the issue afresh to pass necessary orders in denovo on determination of value on the imports made from related overseas firm. While rem .....

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Accordingly, the matter is listed today. 3. The Ld. Advocate reiterated the grounds of appeal and submits that they have preferred appeal against the OIO and when the order is set aside and remanded denovo the Commissioner (Appeals) has no jurisdiction to direct the appellant to pay 5% EDD of the invoice value till the issue of denovo order. Under Section 128 A of the Act, the Commissioner (Appeals) has power to modify/annul/ remand with directions if any. He further submits that the directions .....

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n identical issue the Honble High Court held that while remanding the case to the lower authority, the Tribunal cannot impose any pre-condition. He submits that the same ruling applies to the Commissioner (Appeals) also. He also places a copy of the letter dated 26.08.2015 addressed to AC, Customs and submits that in spite of interim stay ordered vide Tribunals miscellaneous Order dated 14.08.2015, they have paid EDD of ₹ 14,63,832/- (EDD @ 5% for three Bills of Entry). 4. On the other h .....

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tter to the adjudicating authority to pass fresh orders for examining the case afresh on merits. The Commissioner (Appeals) has also directed the appellant to pay EDD at the equivalent of 5% of the invoice value till the issue of fresh orders ad also directed the DC (SVB) to assess the bills of entry provisionally till the issue of fresh orders. The limited issue in this appeal is whether the Commissioner (Appeals) while remanding the appeal has power to direct the lower authority to put pre-con .....

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ed counsel for the respondents that there is an effective alternative remedy available, as provided under Section 129A of the Customs Act, the ultimate conclusion reached by the appellate Authority directing the petitioner to pay EDD equivalent to 5% of the Assessable value till the issue of the fresh order, in my considered opinion, is not maintainable for the reason that when the matter is remanded back to the file of the original authority, all the issues are to be adjudicated afresh, without .....

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the petitioner. The Hon ble High Court Order in the case of National Oxygen Ltd. (supra) is reproduced below:- 16.The Tribunal by an elaborate order after discussing the issues raised before it recorded a finding that the appeal before it was a fit case for remitting back to the original authority. The basis for recording such a finding is also stated as that the order appealed against before it was not a speaking order; that it has not answered the plea raised by the appellant; and that it has .....

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