2012 (10) TMI 144 - AT - Customs

Short payment of Custom duty - provisional assessments made in the Bills of Entry and related ex-bond Bills of Entry - application for waiver of pre-deposit - Held that - It appears from the records that the appellant had filed a total number of 37 bills of entry which were provisionally assessed and accordingly the consignments were allowed to be cleared on payment of duty on provisional basis. Subsequently, in respect of 31 out of 37 consignments, show-cause notices were issued for recovery of differential duty on the basis of differential quantity of crude oil between bill of lading and shore tank measurement. These show-cause notices are said to be pending. Thus a valid point in the submissions made by the assessee with reference to the pending show-cause notices. The pendency of those show-cause notices was duly notified to the adjudicating authority in the present case but the same appears to have been ignored. The Commissioner (Appeals) also appears to have ignored this aspect while asking for pre-deposit of Rs. 75 lakhs. Thus after considering all the aspects a pre-deposit of an amount of Rs. 25 lakhs would suffice the purpose of Section 129E of the Customs Act and that, upon such pre-deposit, the learned Commissioner (Appeals) should dispose of the assessee s appeal on merits without insisting on further deposit, of course, after giving the appellant a reasonable opportunity of being heard - in favour of assessee by way of remand.

Summary

Issues:
1. Waiver and stay of customs duty demanded by lower authorities.
2. Dismissal of appeal for non-compliance with Section 129E of the Customs Act.
3. Consideration of pending show-cause notices and prima facie case against the demand of duty.

Analysis:
1. The appellant filed an application seeking waiver and stay of customs duty amounting to Rs. 1,35,55,588/- demanded by lower authorities. The Tribunal found the appeal fit for summary disposal after dispensing with pre-deposit, allowing the appeal to be taken up.

2. The original authority had confirmed the total customs duty amount short paid by the appellant, leading to the appeal to the Commissioner (Appeals). The appellant failed to comply with the pre-deposit requirement under Section 129E of the Customs Act, resulting in the dismissal of the appeal. The appellant sought modification of the pre-deposit order, which was denied, leading to the present appeal.

3. The Tribunal noted that the appellant had filed 37 bills of entry for clearance of consignments of crude petroleum, with show-cause notices pending for recovery of differential duty. The Tribunal considered the pendency of show-cause notices and the demand of duty raised while those notices were pending. While acknowledging the pending show-cause notices, the Tribunal found no prima facie case against the impugned demand. It directed a pre-deposit of Rs. 25 lakhs, allowing the Commissioner (Appeals) to dispose of the appeal on merits without further deposit, ensuring natural justice principles were followed.

In conclusion, the Tribunal set aside the impugned order, remanding the appeal to the Commissioner (Appeals) for a decision on merits with the condition of a pre-deposit of Rs. 25 lakhs. The stay application was also disposed of in the judgment.