2016 (3) TMI 62 - AT - Customs

Waiver of pre-deposit of differential duty under Section 129E- Declared value rejected by DRI and revalued confirming the differential duty of ₹ 265,46,81,964/- u/s. 28(2) of Customs Act for the period 2006 to 2010- Appellant complied pre-deposit of ₹ 10 Crores and paid 1% EDD for the period May to June 2013- SVB provisional assessment order for the period May 2011 to till date pending- Held that the appellant filed the appeal against the Commissioner s order on 9-10-2015 and complied with pre-deposit of the tax of ₹ 10 Crores u/s.129A. The Commissioner s order confirming the demand under section 28 is related to the period 2006 to 2010 whereas the pending SVB provisional assessment ordered for the period May 2011 till date. Ordering 1% EDD for future imports is with reference to pendency of appeal before Tribunal. Therefore there is no justification or any valid grounds to stay the operation of the order and the miscellaneous application for stay is liable to be justified. The Principal Commissioner of Customs (Chennai-III) has granted extension of waiver of payment of 1% EDD from 12.10.2015 till 31/12.2015. The order for provisional assessment for the subsequent period and the deposit of 1% EDD for the subsequent imports pending finalization by SVB are independent and not linked with the impugned Order in Original. Therefore we find that DC SVB cannot seek 1% EDD on the grounds of appeal pending against OIO. - Decided partly in favour of assessee

Summary

Issues:
Stay of operation of orders and appeals, Valuation of imported cars and components, Differential duty, Penalty under Customs Act, Pre-deposit compliance, Provisional assessment, Extension of waiver of payment of 1% EDD, Justification for stay of operation, Granting waiver of EDD payment.

Analysis:
The appellant filed miscellaneous applications seeking a stay of operation of orders and appeals. The case involved the valuation of imported cars and components, with a DRI investigation leading to a show cause notice issued by ADG, DRI. The Commissioner of Customs confirmed a differential duty, rejecting the declared value and imposing penalties under the Customs Act. The appellant appealed under amended provisions of 129E, having already made a pre-deposit of &8377; 10 Crores and requesting a waiver of the balance amount.

The Commissioner finalized the assessment, enhancing the value and imposing penalties. The appellant argued for provisional assessment of future imports pending SVB finalization. The department sought to continue the 1% EDD. The AR contended that the 1% EDD for future imports was independent and not related to the present order.

After hearing both sides, it was found that the appeal against the Commissioner's order and the pre-deposit of tax were in place. The Commissioner's order related to the period 2006 to 2010, while the pending SVB provisional assessment was for the period from May 2011 onwards. The Tribunal concluded that there were no valid grounds to stay the operation of the order, as the 1% EDD for future imports was not linked to the present order.

The Principal Commissioner of Customs had granted an extension of the waiver of payment of 1% EDD for a specified period. The Tribunal determined that the order for provisional assessment for subsequent periods and the deposit of 1% EDD for future imports pending SVB finalization were independent and not connected to the impugned Order in Original. Therefore, the Tribunal held that the DC SVB could not demand 1% EDD based on the appeal pending against the OIO. The Principal Commissioner was deemed free to grant a waiver of EDD payment, and the miscellaneous applications for stay were disposed of accordingly.