2011 (4) TMI 902 - AT - Customs

Stay application - Waiver of pre deposit of the duty of over ₹ 1.26 crores - Held that - The very foundation of Order-in-Appeal impugned in the present appeal of the assessee has collapsed with the setting aside of Order-in-Appeal No. 67/2005 and hence the impugned order requires to be set aside - Decided in favour of the assessee by way of remand to Commissioner

Summary

Issues: Stay application for waiver of pre-deposit and stay of recovery; Validity of assessment order; Appeal against Assistant Commissioner's order; Setting aside of Order-in-Appeal No. 67/2005; Remand to Commissioner (Appeals) for fresh decision.

Stay Application for Waiver of Pre-deposit and Stay of Recovery:
The stay application sought waiver of pre-deposit and stay of recovery concerning a duty amount exceeding Rs 1.26 crores. After reviewing the records and hearing both parties, the Tribunal found the case suitable for summary disposal. Consequently, the pre-deposit requirement was waived, and the appeal was taken up for consideration.

Validity of Assessment Order:
The appellant had imported 83 consignments from Kuwait, which were provisionally assessed to duty. The Additional Commissioner of Customs had directed the goods to be valued at US$ 352.35 per MT for assessment. Subsequently, the Appellate Commissioner's order, based on Order-in-Appeal No. 67/2005, was challenged. The Tribunal set aside the Appellate Commissioner's order, leading to a series of appeals and remands. The Assistant Commissioner finalized assessments based on the earlier order-in-assessment, resulting in a duty amount of Rs 1,26,98,122. The Assistant Commissioner proceeded with the assessments despite the pendency of appeals against the previous orders.

Appeal Against Assistant Commissioner's Order:
In the appeal against the Assistant Commissioner's order, the Commissioner (Appeals) found no grounds to interfere with the decision. The Appellate Authority noted the pending appeal against Order-in-Appeal No. 67/2005 and the absence of a stay on its operation.

Setting Aside of Order-in-Appeal No. 67/2005:
The Tribunal had set aside Order-in-Appeal No. 67/2005 in a previous appeal, leading to a remand for a fresh decision by the Commissioner (Appeals). The foundation of the impugned order in the present appeal collapsed with the setting aside of Order-in-Appeal No. 67/2005. Consequently, the impugned order was set aside, and the appeal was allowed by way of remand to the Commissioner (Appeals) for a fresh decision in accordance with the law and the Tribunal's previous remand orders.

In conclusion, the Tribunal set aside the impugned order and remanded the case to the Commissioner (Appeals) for a fresh decision, emphasizing that the assessee should be given a reasonable opportunity to be heard during the proceedings.