2014 (12) TMI 941 - AT - Customs

Waiver of pre-deposit - Penalty u/s 112 - Discharge of duty liability on quantity of fuel remained in the air craft as unused - Held that - Fuel that was procured in India and present in the aircraft at the time of its departure from Kolkata Airport for foreign trip, ought to be deducted from the total quantity of fuel found at the time of its return, from the foreign trip. In principle, there is no dispute, as the Commissioner has recorded it in the impugned order. The grievance of the appellant is that even though all the records were produced before the Ld. Commissioner alongwith the C.A. certificate, no finding has been recorded on the same, before confirming the demand. The Commissioner has confirmed the demand only on the ground that they could not produce invoices of fuel procured in India and also the fact that they could not show that they have not claimed rebate/ draw back against the exports. The work sheets and C.A. Certificate produced by the Appellant need to be considered/examined and from the finding of the Commissioner, we do not see any such discussion. Accordingly, in our opinion, the appeal need to be remitted to the adjudicating authority for deciding the issue afresh. Also, we find that the Revenue has also filed Appeal against the same order of the Ld. Commissioner. This Tribunal has consistently, in similar situation, remanded the case, where both the Revenue and the assesse are in appeal against the same order. In the result, the impugned order is set aside and the Appeals are remitted, with the consent of both sides, to the adjudicating authority, for deciding the issue afresh, after taking into consideration all evidences that have been produced by the appellant company before us as well as placed earlier during the course of adjudication proceedings; and also the grounds raised by the Revenue in their Appeal. - Decided in favour of assessee.

Summary

Issues:
Application for waiver of pre-deposit of Customs duty and penalty under Section 112(a) of Customs Act, 1962.

Analysis:
The appellant filed an application seeking waiver of pre-deposit of Customs duty amounting to Rs. 3.60 Crores and a penalty of Rs. 1.00 Crore imposed under Section 112(a) of the Customs Act, 1962. The dispute arose from the Customs department's claim that the appellant had not paid appropriate customs duty on the quantity of fuel remaining in the aircraft after a foreign trip. The appellant contended that they had declared the quantity of fuel both before departure and upon arrival, paying duty on the differential quantity. They provided detailed worksheets and a C.A. certificate to support their claim, but the Commissioner did not consider these documents while confirming the demand. The appellant argued that the Commissioner's decision was based on their inability to produce invoices for fuel procured in India and failure to prove non-availment of duty rebate, as per Notification No. 151 of 94 Customs.

The Revenue, represented by the Ld. A.R., supported the Commissioner's findings, stating that the appellant failed to prove that the fuel procured in India and present in the aircraft at departure were duty-paid or that no rebate claims were made. The Ld. A.R. cited a previous Tribunal judgment to strengthen the Revenue's position.

The appellant's advocate highlighted that the Revenue had also filed an appeal against the same order. After hearing both parties, the Tribunal found that the present appeal and the Revenue's appeal could be disposed of together. With the consent of both sides, the Tribunal waived the pre-deposit requirement and took up both appeals for disposal. The principal issue revolved around determining the actual quantity of imported fuel by deducting the amount present at departure from India from the total amount upon return from the foreign trip. The Tribunal noted that the Commissioner did not consider the worksheets and C.A. certificate provided by the appellant before confirming the demand. Therefore, the Tribunal decided to remit the case back to the adjudicating authority for a fresh decision, considering all evidence presented by the appellant and the grounds raised by the Revenue. The impugned order was set aside, and the appeals were remitted for a fresh decision.