TMI Blog2015 (11) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... d all the 21 bills of entries were provisionally assessed on executed of bond as samples have been sent for testing in order to ascertain the classification and value. The Commissioner also confirmed that the bills of entries are not finalized till date and Bill of Entry No. 4378411 dated 17.8.2011 is not assessed provisionally and was assessed finally. Prima facie, we find that all the 21 bills of entries related to past clearance were assessed provisionally whereas the present order is silent on the finalization of the bills of entries provisionally assessed. Therefore, prima facie, there is merit on the appellant s plea insofar as the 22 bills of entries are concerned as the demand was confirmed under section 28 and value was enhanced wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2011 and dated 22.2.2012 in W.P. No. 1511/2012, the goods were released on deposit of 30% of differential duty and bond for the balance amount. Subsequently, DRI completed the investigation and issued show-cause notice dated 6.3.2013 proposing to confiscate the goods and demanding differential duty on the live bills of entries as well as demanding differential duty for the past 22 bills of entries. The adjudicating authority, in his impugned order, confiscated the seized goods imported under live bills of entries pertaining to both the appellants and allowed to redeem the same on payment of redemption fine, rejected the declared value and also demanded differential duty in respect of live bills of entry and for the past consignment of 22 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alized and still pending. He submitted copies of the bills of entries and High Court s orders. He relies on the following case laws:- (a) Collector of Customs Vs. Kussum Marodia 1995 (77) ELT 808 (Cal.) (b) Commissioner of Customs Vs. Mahesh India 2009 (243) ELT 339 (Bom.) (c) A.S. Syndicate (Warehousing) P. Ltd. Vs. Commissioner of Customs 2011 (267) ELT 469 (Cal.) (d) Judgment of the Hon ble High Court of Calcutta dated 1.4.2014 in W.P. No. 224/2014. 4. On the other hand, the learned AR for Revenue reiterates the findings of the adjudicating authority. He submits that bills of entries assessed were provisional only for the purposes of testing for confirming the description and classification whereas the present demand i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whereas the present order is silent on the finalization of the bills of entries provisionally assessed. Therefore, prima facie, there is merit on the appellants plea insofar as the 22 bills of entries are concerned as the demand was confirmed under section 28 and value was enhanced without finalizing the provisional assessment of said bills of entries. The Honble High Court of Bombay in the case of Commissioner of Customs Vs. Mahesh India (supra) has held that when the goods are not provisionally assessed, short levy does not arise. The relevant paragraph is reproduced below:- 6. It is true that in the light of the Judgment of this Court in the case of Electron Textile Exports (P) Ltd. Anr. (supra), the findings recorded by the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of 22 bills of entries related to the past clearance. 7. As regards the four live bills of entries, we find that the adjudicating authority has already appropriated an amount of ₹ 19,47,067/- deposited by the appellant on the basis of the orders of the Hon ble High Court of Madras. In view of the appropriation made in the impugned order, we find that the amount already paid and appropriated would be sufficient for the purpose of waiver of balance amount of dues. 8. Accordingly, we grant full waiver of predeposit in respect of demand confirmed on 22 bills of entries pertaining to appellant M/s. Abhishek India and waive predeposit balance dues demanded on the four live bills of entries of both the appellants and stay i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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