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TMI Blog2010 (6) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... discretion to ask for security - C/1008/2009 - A/163/2010-WZB/C-II/CSTB - Dated:- 3-6-2010 - S/Shri P.G. Chacko, Member (J) and S.K. Gaule, Member (T) REPRESENTED BY : Shri T. Viswanathan, Advocate, for the Appellant. Shri S.S. Katiyar, SDR, for the Respondent. [Order per : P.G. Chacko, Member (J)]. - The appeal filed by the assessee is against the Commissioner's decision communicated to them through the Assistant Commissioner's letter dated 25-8-2009. The assessee had imported a few consignments of second-hand textile machinery in the month of June 2009. They furnished the documents and information required by the assessing authority. Anticipating delay in release of the goods, the party made a request to the As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;After Joint Examination of machines under reference, by Shri A.Y. Gokhale, Superintendent (Export), Shri Sandeep Trehan, Shed Appraiser, S.G. Wankhede, Shed Appraiser, Dr. Mohan S. Kamble, Chartered Engineer, along with Shri O.P. Sharma, Asst. Vice President M/s. Uniworth Textiles Ltd. and Shri Nilesh M. Kale, Representative of C.H.A. M/s. Royal Freight Forwarders, the value of total machineries mentioned in Appendix F of the Agreement dated 4-4-2009 has been certified by the local independent Chartered Engineer to be Rs. 12,05,57,115/- as against total value of Rs. 80,71,337/- declared by you. Besides, the dismantling charges of USD 55000 which works out to Rs. 26,34,500/- also needs to be included in the assessable value. Thus the total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch as the said order was passed by the Commissioner as an adjudicating authority. In this connection, we note that the assessee never made any application to the Commissioner and, therefore, it cannot be said that there was any dispute between the assessee and the department to be adjudicated upon by the Commissioner. It would follow that the decision of the Commissioner as conveyed to the appellant by the Assistant Commissioner was not one taken by the Commissioner as an adjudicating authority. In this view of the matter, the Commissioner's order for provisional assessment of the goods cannot be said to be appealable to this Tribunal under Section 129A of the Act. Therefore, the appellant's request for setting aside the order for provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms of the bond shall be that the person executing the bond shall pay the deficiency, if any, between the duty finally assessed and the duty provisionally assessed. Regulation 4 says that the proper officer may require that the bond to be executed under these Regulations may be with such surety or security or both as he deems fit. The aforesaid condition No. 1 stipulated by the learned Commissioner is certainly harsh in view of Regulation 2, which restricts the P.D. amount to 20% of the provisional duty. The learned Commissioner asked for P.D. bond for 100% of the assessable value, which is clearly beyond the scope of Regulation 2. The learned Commissioner also asked for cash deposit to the extent of 50% of the differential duty besides ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18(1) of the Act appears to have given a discretion to the proper officer in the matter of requiring the importer to furnish security or surety. It is common departmental practice that bank guarantee and cash deposit are required to be furnished by importers/ exporters. However, in regard to the condition relating to bank guarantee, we find that the Assistant Commissioner's letter dated 25-8-2009 does not disclose that the plea of financial hardships made by the assessee or the alternative proposal made by them was considered by the Assistant Commissioner or the Commissioner. We are of the view that this aspect should be carefully considered by the Assistant Commissioner before requiring the party to furnish any bank guarantee. As we have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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