TMI Blog2020 (9) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... ring to furnish 100% Bank Guarantee. Revenue is directed to allow the import of consignments of the Appellant without insisting on any Bank Guarantee with immediate effect. The respondent Revenue is expected to adhere to this order in letter and spirit, without causing any further loss of business to the Appellant - appellants shall be permitted to release the goods on condition of their executing Indemnity Bond agreeing and undertaking to pay the amount of differential duty as may be imposed on them by the Customs authorities while making the final assessment, instead of bank guarantee. Appeal allowed. - Customs Appeal No.75199 of 2020 - Final Order No. 75392/2020 - Dated:- 1-9-2020 - Hon ble Shri P.K. Choudhary, Member (Judicial) For the Appellant (s) : Shri B.L. Narasimhan, Advocate Shri Rahul Tangri, Advocate For the Respondent (s) : Shri A.K.Biswas, Superintendent, Authorized Representative ORDER P.K.CHOUDHARY : The appellant is in appeal against Order-in-Appeal No.KOL/CUS/AKR/426/2020 dated 15.07.2020 passed by the learned Commissioner of Customs (Appeals), Kolkata. The facts of the case in brief are that the appellant is a private limite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the differential duty. Being aggrieved the appellant preferred Writ Petition No.5694 (W) of 2020 before the Hon ble Calcutta High Court challenging the aforesaid order. The Hon ble High Court vide Order dated 02.07.2020 observed that the Provisional Assessment order is an appealable order and directed the appellant to file appeal before the first appellate authority. The appeal was filed before the first appellate authority. The learned Commissioner of Customs(Appeals), Kolkata disposed of the appeal and allowed the Provisional Assessment of subsequent Bill of Entry for identical products which were already re-assessed under Tariff Item 2202 9920 of the Customs Tariff Act, 1975. Vide Bill of Entry No.7482868 and 7482872 both dated 20.04.2020 vide Order-in-Appeal No.KOL/CUS(CCP)/AKR/299/2020 dated 08.06.2020. Being aggrieved, the appellants are in appeal before the Tribunal. 2. Before the hearing, the appellants have filed written notes of arguments wherein these grounds are pressed. (a) Bank Guarantee should not be insisted for provisional assessment when appellate order is in favour of assessee. (b) It is humbly submitted that there is no case of provisional assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate authority, in view of the Judicial Discipline. 4. Alternatively, he also submitted that even if the provisional assessment is resorted to, still the circumstances do not warrant the imposition of the onerous condition of furnishing 100% bank guarantee on the Appellant for the differential duty amount (viz. 28%), since the appellate authority s order on the assessment of identical goods is in their favour. For this, he relied on the judgment of Hon ble Madras High Court in the matter of Sai Exports v. Commissioner, 2018 (10) G.S.T.L. 161 (Mad.) , where in identical set of facts the Hon ble High Court held that the department cannot mechanically insist upon the bond and bank guarantee without reference to the appellate order in assessee s favour on the same issue. Thus, the Hon ble High Court directed that no personal bond or bank guarantee for the provisional assessment of the consignments should be called for. 5. Similar proposition has been held in the case of Chalissery Kirana Merchant v. UOI 2015 (324) ELT 112 (Ker.) . 6. The learned Authorized Representative appearing on behalf of the respondent Revenue justified the impugned order. 7. Heard both sides and per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Bank guarantee for provisional assessment of the subject goods. Being aggrieved by the same, the petitioner is before this Court. 3. Considering the facts and circumstances of the case, I find that there is no justification on the part of the respondents to mechanically insist for furnishing bond and Bank guarantee for provisional assessment of the subject goods. This conclusion is supported by the following reasons. Earlier, the petitioner had effected three imports during the year 2013. The respondents did not accept the declared value and enhanced the value to unit price of US$ 4.82. The petitioner cleared the goods based on the enhanced value. Subsequently, an Order-in-Original No. 21613/2013, dated 28-2-2013 was passed, against which, the petitioner filed an appeal before the Commissioner of Customs (Appeals). This appeal was rejected by order dated 24-3- 2014, stating that the petitioner has not produced any evidence to substantiate their claim. As against the same, the petitioner has filed an appeal in C/40939/2014 before the CESTAT and the appeal is pending. In the year 2014, the petitioner imported similar goods under five Bills of Entry, which were all allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate authorities should be followed unreservedly by the subordinate authorities. The mere fact that the order of the appellate authority is not acceptable to the department - in itself an objectionable phrase - and is the subject-matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent Court. If this healthy rule is not followed, the result will only be undue harassment to assessees and chaos in administration of tax laws . 5. Thus, the third respondent cannot mechanically insist upon the production of bond and Bank guarantee without referring to the earlier decision passed by the Commissioner of Customs (Appeals), which is in favour of the petitioner. 6. In the light of the above, the writ petition is allowed, the impugned order is quashed and the respondent is directed to provisionally assess the subject goods relating to Bill of Entry dated 16-4-2017 without mechanically insisting upon personal bond and the Bank guarantee by taking note of the decision of the Commissioner of Customs (Appeals) dated 1-5-2014 in Order-in-Appeal C. Cus No. 745/2014 and pass appropriate orders for release of the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X
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