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M/s. Terapanth Foods Limited, Shri Babulal Singhvi & M/s. The Kutch Salt & Allied Industries Limited Versus Commissioner of Customs, Kandla

2015 (12) TMI 241 - CESTAT AHMEDABAD

Validity of notice for demanding of differential duty - Finalization of provisional assessment - Penalty u/s 18(2) - Undervaluation of goods - Held that:- As revealed from letter dated 13.10.2015 the assessment of two Shipping Bills in each cases, were finalised at the time of exportation of the goods. So, the proposal of finalisation of provisional assessment and consequent demand of duty alongwith interest in the show cause notices and confirmation of demand of duty and imposition of penalty b .....

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erring to a wrong year and the entire proceedings were held to be void for want of jurisdiction. It is significant to note that the statutory notice is notice made by legislative enactment.

Valuation - Demand of duty on additional amount of US$ 10 PDMT as commission to their overseas agents cannot be levied mainly on the basis of statement, without examining documents. In our considered view, the appellant should be given an opportunity to place the documents before the adjudicating a .....

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ht. Further, the part of the demand of duty alongwith interest and penalty cannot be sustained. In such situation, imposition of penalty on the Director of the appellant Companies is not justified. - Appeal disposed of. - Appeal No.: C/10982-10985/2015 - ORDER No. A/11529-11532/2015 - Dated:- 20-10-2015 - Mr. P.K. Das, Member (Judicial) And Mr. P.M. Saleem, Member (Technical) For the Petitioner : Shri V.M. Doiphode, Advocate For the Respondent : Shri J. Nagori, Authorised Representative ORDER Pe .....

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sation of assessment and demand of differential duty on finalisation of the assessment in respect of two shipping bills both dated 10.04.2012 under Section 18 (2) of the Customs Act, 1962. Further, it was proposed to demand of duty along with interest and to impose penalty, on undervaluation of goods in respect of other three shipping bills dated 27.09.2011, 25.07.2011 and 03.05.2011 under Section 28 of the said Act, 1962. In the case of M/s. The Kutch, a show cause notice dated 17.01.2014 was i .....

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th the appellant companies and the personal penalty was imposed on Shri Babulal Singhvi, Director of both the appellant Companies separately. Hence, both the companies filed appeals and Shri Babulal Singhvi filed two appeals against imposition of penalties. 4. Heard both sides and perused the records. 5. Learned Advocate on behalf of the appellants submits that the two Shipping Bills both dated 10.4.2012 in the appeal of M/s. Terapanth and Shipping Bills dated 09.04.2012 and 10.04.2012 in the ca .....

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The matter was heard at length on 21.09.2015 and the learned Authorised Representative for the Revenue sought time to take instructions from the Commissionerate on this issue. Today, the learned Authorised Representative placed a copy of letter dated 13.10.2015, issued by the Principal Commissioner, Customs, Customs House, Kandla addressed to Additional Commissioner (AR), CESTAT, Ahmedabad. The relevant portion of the said letter dated 13.10.2015 is reproduced below:- 2. The status of Shipping .....

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g Bill No. & Date Name of Exporter Status of the S/B (Whether Provisional/Final) Date of finalization of S/B, as per assessment by the AC(APR) appearing on the screen shot of the S/B 1 8410415 dated 10.04.2012 M/s Terapanth Food Pvt. Limited FINAL 10.04.2012 2 8412947 dated 10.04.2012 FINAL 10.04.2012 3 8374036 dated 07.04.2012 M/s The Kutch Salt & Allied Industries Limited FINAL 09.04.2012 4 8412749 dated 10.04.2012 FINAL 10.04.2012 3. A Letter issued to the Deputy Director, DRI Regiona .....

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ort duty, subsequent to such final assessment under the provisions of Section 18(2) (a) of the said Act, 1962. In this context, show cause notice dated 06.09.2013 in the case of M/s. Terapanth, may be referred, as under:- The Shipping Bill Nos. 8410415 and 8412947 both dated 10.04.2012, wherein the assessment is provisional, should not be assessed finally, by charging the export goods to appropriate duty @ 30% ad valorem, under the provisions of Section 18(2) of the Customs Act, 1962, read with .....

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uch provisional assessment. In terms of Section 18(2) (a) of the said Act, when such goods is assessed finally by the proper officer, in the case of goods cleared for exportation, if the amount so paid falls short of the duty finally assessed, the exporter of the goods shall pay the deficiency. In the present case, as revealed from letter dated 13.10.2015 as stated above, the assessment of two Shipping Bills in each cases, were finalised at the time of exportation of the goods. So, the proposal .....

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n Hussain Ibrahimji Mithiborwala [(1971) 82 ITR 821 (SC), a notice under Section 34 of the Indian Income Tax Act, 1922 was found by the Supreme Court to be invalid as referring to a wrong year and the entire proceedings were held to be void for want of jurisdiction. It is significant to note that the statutory notice is notice made by legislative enactment. 9. The other issue is undervaluation of the export goods vide Shipping Bill Nos. 5529529 dated 27.09.2011, 4696772 dated 25.7.2011 and 35087 .....

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ermore, FOB value would be treated as cum-duty FOB price. He fairly submits that the cum-duty FOB price decided against them by the Tribunal in the case of Sesa Goa Limited vs. CCE, Cus. & ST, Bhubaneswar - 2014 (313) ELT 317 (Tri. Kolkata). The appeal was filed before the Appellate authority against the said order, which is pending. He further submits that the appellant No. 2 has merely signed the contract and therefore, he has no involvement in the matter and imposition of penalty is unwar .....

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d that the main contention of the learned Advocate is that they have submitted documents on the actual freight before the adjudicating authority, which were not examined. Further, demand of duty on additional amount of US$ 10 PDMT as commission to their overseas agents cannot be levied mainly on the basis of statement, without examining documents. In our considered view, the appellant should be given an opportunity to place the documents before the adjudicating authority in respect of actual fre .....

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