TMI Blog2005 (4) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... ission stage itself. 3.The petitioner imported certain photocopier machines. He declared them as capital goods. The bill of entry was filed immediately after importing the goods sometime in October 2004. Since the assessment was not being made for determining the duty payable and the goods remained in the port area accruing demurrage liability on the petitioner, he moved Writ Petition No. 209 of 2005 before this Court. By order dated February 9th, 2005 such writ petition was finally disposed of directing the competent authority to conclude the proceeding regarding assessment of duty within five working days. The authority then gave the decision holding that the petitioner had given a wrong declaration regarding the nature of the imported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that as was held by the Apex Court the argument of the customs authorities that they have a right to prefer an appeal before the Supreme Court, and hence no order should be made to release the goods or to enforce the order of the appellate tribunal in any other manner, has no substance at all. 6.Counsel for the customs authorities refers me to the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982, Rule 41, and argues that since remedy of execution is available before the tribunal, where the petitioner submitted himself by preferring the appeal, there is no valid reason why the writ petition should be entertained, when admittedly the petitioner did not approach the appellate tribunal for execution of its order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner, is available from the decision given by the Apex Court [reported at 1991 (55) E.L.T. 433]. In no uncertain terms the Apex Court said that only because the department enjoys a right of appeal to the Supreme Court, it would not enjoy the corresponding right to take a decision not to comply with the binding decision of the appellate tribunal. The several decisions cited to me were given by placing reliance on the said Apex Court decision, and in all of them almost in similar circumstances direction was given for release of the goods in terms of order of the Appellate Authority/Tribunal. 9.As rightly pointed out by counsel for the petitioner remedy available under Rule 41 of the abovenoted rules would not stand in the way of ente ..... X X X X Extracts X X X X X X X X Extracts X X X X
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