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2017 (4) TMI 785 - BOMBAY HIGH COURT

2017 (4) TMI 785 - BOMBAY HIGH COURT - TMI - Notice of motion - Appeal against Tribunal's order - Revenue seeks a unconditional stay of the Tribunal's order - Rule 41 of the Rules styled as CESTAT Procedural Rules, 1982 - Held that: - We do not see how the Revenue, therefore, is prejudiced. The Revenue cannot argue that it will comply with the order of CESTAT qua one vessel only or qua one drawback application. Once the stand is made clear on affidavit and there is an order of sanction passed on .....

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deep S. Jetly a/w. Mr. Jitendra B. Mishra, Advocate for the Applicant / Appellant Mr. Rafique Dada, Senior Counsel a/w. Mr. Vipin Kumar Jain, Mr. P.K. Shetty, Mr. Krishnan Kumar, Advocate for the Respondent ORDER P.C. On the earlier occasion and even today we have heard both the sides. 2 This is a Notice of Motion by the Revenue. 3 The applicant - Commissioner of Customs (Import) has filed this Notice of Motion seeking the following two reliefs: a) that pending the hearing and final disposal of .....

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. 4 In the affidavit in support it is stated that the Revenue has filed an Appeal in this Court aggrieved and dissatisfied with the Tribunal's order dated 9th July, 2013. There are cross Appeals by the assessee as well. 5 All these Appeals are admitted. The Appeals are admitted on substantial questions of law. However, as far as the present Notice of Motion is concerned, what the Revenue has found out is that though the Appeals were admitted, the assessee has filed Miscellaneous Application .....

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rectness and legality of which is under consideration of this Court, should not be allowed to be implemented. If that is allowed to be implemented, it would mean this Court renders the Revenues' Appeals infructuous. 7 It is argued by Mr.Jetly appearing in support of this Motion that whenever any reasonable request is made by the assessees, even pending the Appeals, the Revenue has agreed to accommodate them. There were further vessels which were to be imported and brought in this country so .....

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ring the pendency of the Appeals huge amounts are paid, then, it would be difficult to recover them. Hence, the Motion may be allowed. 8 An affidavit-in-reply is filed to this Notice of Motion. The assessee has contested this Motion by pointing out that there is absolutely no substance in the contentions of the Revenue. The Motions moved by the assessee in the Appeal before this Court, are not concerned with the matter is raised now. The issue is very simple. Ten foreign flag vessels were tempor .....

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dia. All this was thoroughly checked by the Customs. Out of the ten vessels, three were seized. The other seven were not available for seizure. Thereafter, certain amounts were paid allegedly because of short payment of duty. Upon adjudication, the adjudicating authority confirmed the entire demand of customs duty. That was reduced by the CESTAT to the extent of drawback, that would have been available to the respondent assessee at the time of re-export of the vessels. The respondent's Appea .....

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not concerned with this aspect of the matter. We only reproduce for the present purpose two paragraphs of the affidavit-in-reply at pages 43 and 44 of the paper book, namely, paragraphs 13 and 14 : 13 With respect to para 16 of the Affidavit, I say that no ground whatsoever have been made out in the Notice of Motion or the Affidavit in support therefore, for seeking a stay against operation of the CESTAT order dated 9.7.2013. I submit that in fact, out of the ten appeals, in respect of Customs A .....

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e allowed by this Court, the Respondent would be obliged to pay the duties with statutory interest of 15% of the date. In addition, the Respondents are ready and willing to submit Indemnity in lieu of the refund in the event the Revenue succeeds in its appeals. The Appellant's office has infact asked the Respondent to give such an indemnity in a particular format. A copy of the letter dated 15.2.2017 is annexed hereto and marked Exhibit 'C'. 14 I further submit that out of the ten ap .....

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urt. The said decision has also been followed by this Hon'ble Court in Commissioner of Customs v. Sudarshan Cargo Pvt. Ltd. 2010 (259) ELT 197 and Commissioner of Customs v. National Leather Cloth Mfg. Co. 2015 (321) ELT 135 wherein it has been held that in the absence of there being seizure of goods under the Customs Act, there cannot be a demand for customs duty under Section 125 thereof. Insofar as demand under Section 28 of the Customs is concerned, the CESTAT has categorically recorded .....

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