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TMI Blog2010 (3) TMI 534X X X X Extracts X X X X X X X X Extracts X X X X ..... est, penalty and other charges. Exemption from duty can be claimed on relinquishing title to goods. - 26 of 2006 - - - Dated:- 18-3-2010 - K.L. Manjunath and H.S. Kempanna, JJ. Shri Shashikantha, Advocate, for the Appellant. S/Shri Sriyuths G. Shivadass, Suresh Astekar and Anil Kumar, Advocates, for the Respondent. [Judgment per : K.L. Manjunath, J.]. - The Revenue has come up in this appeal following the order of the CESTAT in Final Order No. 2198/2005 dated 9-12-2005 [2006 (202) E.L.T. 316 (Tri.-Bang.)]. The appeal is admitted to consider the following substantial questions of law :- (i) Whether the CESTAT is legally right in giving relief to the Respondent under the amended Sec. 68 of the Customs Act, 1962, which came ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty payable by the respondent and also to levy interest and penalty in accordance in law. Being aggrieved by the order passed by the authority, the assessee filed an appeal before the Commissioner of Customs (Appeals) which appeal came to be dismissed. As against the same, the assessee filed an appeal before the CESTAT which appeal came to be allowed by considering the proviso the Section 68 of the Act. It is also relevant to mention in the meanwhile the assessee has challenged the action of the appellant by filing the writ petition under Section 23(2) of the Act which also ended in vain. Challenging the order of the CESTAT, the Revenue has filed this appeal. 3. We have heard the learned counsel for the parties. 4. Mr. Shashikantha, lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aside, the interest and penalty could not been levied by the revenue. Therefore, he requests this Court to dismiss the appeal. 6. Having heard the learned counsel for the parties, we are of the opinion that even if the writ petition filed by the assessee has been dismissed invoking the relief under Section 23(2) of the Customs Act on account of the amendment brought to Section 68 of the Act by introducing the proviso in the year 2003, there cannot be a bar to the assessee to make use of the amended provision since the case of the assessee was still pending before the authorities and the dismissal of the writ petition on an earlier occasion considering the provisions of Section 23(2) of the Act cannot be held to be a bar by applying the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the assessee and also the interest and penalty levied. Accordingly, we answer question No. 3 in favour of the Revenue. At this stage, the learned counsel for the assessee contends that the assessee has paid the rents regularly to the ware-house. Therefore, we are of the opinion that, in order to compute the interest and penalty payable by the assessee and other charges, if any, we have to remit the matter to the Assessing Officer holding that in view of the proviso to Section 68 of the Act, the assessee can claim exemption in respect of the duty payable by it on relinquishing his title to the goods in the ware-house. Accordingly, we remit the matter to the Assessing Officer for the purpose of computation of interest, penalty and other cha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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