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2014 (3) TMI 927 - AT - CustomsDetermination of rate of duty or value of goods - exemption notification - failure to achieve pro-rata export obligation prescribed in Notification No.44/2002-Customs dated 19.4.2002 - Held that - in this case, rate of duty is already determined and is linked to the export obligation and therefore, the question of determination of fresh rate of duty does not arise. The assessment part is already completed when the concessional rate of duty was extended by the department and the issue in consideration is only whether the assessee is eligible for the concessional rate of duty which was the result of assessment or not. Therefore it cannot be said that this is a case where rate of duty is to be determined by interpreting a notification or tariff heading or any other matter. Similarly, the value of the goods is also determined and it is nobody s case that here the assessing authority would be revising the value or would be considering concessional rate of duty, etc. There was no letter issued by Ministry of Commerce to the appellant for approaching the DGFT and one arm of the Government having advised the appellant to approach DGFT, it would be appropriate to at least wait for a decision by that authority. Therefore I consider that it would be in the interest of justice to give some more time to the appellants. Accordingly the appellant is given six months time from today to produce the decision of the DGFT and in the alternative deposit an amount of ₹ 10.5 lakhs as pre-deposit - Decided partly in favour of assessee.
Issues: Jurisdiction of Single Member in relation to rate of duty or value of goods for assessment; Appeal for exemption notification; Pre-deposit requirement based on past case.
Analysis: 1. Jurisdiction of Single Member: The appellant challenged the order-in-appeal related to failure in achieving pro-rata export obligation under a customs notification. The question was whether the issue involved determination of rate of duty or value of goods, which would impact the jurisdiction of a Single Member. The appellant imported capital goods under an EPCG license but failed to meet the export obligation as per Notification No.44/2002. The demand was confirmed due to non-production of Export Obligation Discharge Certificate (EODC). The Tribunal concluded that the issue did not require a fresh determination of duty rate or goods' value as they were already established during assessment. The focus was on the eligibility for concessional duty rate, not on revising duty rate or value, thus falling within the Single Member's jurisdiction. 2. Appeal for Exemption Notification: The appellant sought Division Bench consideration due to the exemption notification issue. The appellant's efforts to obtain a waiver for unmet export obligations were unsuccessful, even after approaching the DGFT. The Ministry of Commerce advised the appellant to seek DGFT's decision, indicating ongoing efforts to resolve the matter. Considering the appellant's pursuit of a resolution and the need for fairness, the Tribunal granted a six-month extension for producing the DGFT decision or making a pre-deposit of Rs.10.5 lakhs. Failure to comply would result in dismissal of the appeal without further reference. 3. Pre-deposit Requirement: The respondent argued for a pre-deposit based on a previous case involving a similar appellant and issue. In that case, the Tribunal had directed a deposit of Rs.3 lakhs, noting the appellant's significant loss. The respondent proposed a pre-deposit of Rs.10.5 lakhs, approximately 17% of the total amount demanded by the Revenue. However, the Tribunal distinguished the current case by highlighting the Ministry of Commerce's advice to approach the DGFT for resolution. Consequently, the Tribunal opted to grant the appellant more time for resolution, emphasizing the importance of waiting for the DGFT's decision before imposing a pre-deposit requirement. In conclusion, the judgment clarified the jurisdiction of a Single Member in customs matters, allowed an extension for resolution of exemption notification issues, and balanced the pre-deposit requirement based on the specific circumstances of the case.
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