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Commr. of Customs Mangalore Versus M/s Kushalchand & Co.

2015 (12) TMI 246 - SUPREME COURT

Duty demand - Import of Cocoa powder in the name of flour - Held that:- in spite of particular conclusion which was arrived at by the Tribunal that “Cocoa Powder” was ‘Flour’ and covered under the description of the license, the Department did not choose to challenge this finding by filing any further appeal, therefore, at least inter se between the parties, the said issue attained finality and this finding was binding on the Commissioner and, therefore, it was not open to the Commissioner to re .....

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dish, Adv. & Ms. Renuka Sahu, Adv. ORDER The respondent/assessee herein had purchased certain duty free import Authorisations issued against export of biscuits and particulars thereof are as under: (a) 0310444317 dated 26/9/2007 (b) 0310428441 dated 1/5/2007 (c) 0310428434 dated 1/5/2007 These Authorisations were originally issued in favour of Rani International and Pinacle Export. It is not in dispute that the Authorisations were transferable and the respondents were the bona fide transfere .....

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was issued and the position taken therein was confirmed by the Commissioner vide his order dated 06.11.2009 thereby rejecting the contentions of the assessee and confirming the demand contained in the show cause notice holding that the benefit of the aforesaid customs Notification was not available to the assessee. The order of the Commissioner was challenged by the assessee before the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as the Tribunal ). The Tribunal dis .....

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mmissioner without seeing all the amendment sheets which were produced before the Tribunal and for this reason the matter was remitted back to the Commissioner of Customs for examining the amendment sheets and further relevant clarification/circular to adjudicate the matter afresh following the principles of natural justice. On remand, the Commissioner again took the same view viz. Cocoa Powder was not covered under the term Flour and, therefore, the assessee was not entitled to the benefit of t .....

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er of the Commissioner is set aside. After hearing the learned counsel for the parties, we are of the view that the approach of the Tribunal, in the aforesaid circumstances, is however unblemished and does not call for any interference. For this purpose, we may re-produce the operative portion of the order dated 29.12.2009 passed by the Tribunal in the first round by remitting the case back to the Commissioner on limited aspect which reads as under: After hearing both the parties and ongoing thr .....

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herefore there is force in the contention of the appellant that the imported item 'Cocoa Powder' is a flour and covered under the description of the license. Therefore, the only issue ten before us is with regard to chapter headings which according to the appellant are of no relevance to a transferee since no CTH number are appearing on the amendment sheets, after the licenses are transferred by the licensing authorities, amending actual user conditions. We find that DFIA produced before .....

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