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TMI Blog2014 (5) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... Exports)[2014 (5) TMI 121 - MADRAS HIGH COURT] on the basis of documents and provisions of Customs Act and Regulations - Thereafter, the demand of duty along with interest and penalties would be determined as proposed in the show cause notices in accordance with law - So, the impugned orders are set aside to the extent of appeals filed – Matter remanded back to the Adjudicating authority. Decided in favour of Assessee. - C/41688/2013, C/41857/2013, C/41860/2013, C/41861/2013, C/41862/2013, C/41863/2013, C/41864/2013, C/41865/2013, C/41878/2013, C/41879/2013, C/41885/2013, C/41886/2013, C/41922/2013, C/41923/2013, C/41941/2013, C/41953/2013, C/41959/2013, C/41967/201 - FINAL ORDER No.40105-40125-40126/2014 - Dated:- 22-1-2014 - Shri P.K. Das and Shri Mathew John, JJ. For the Appellant : S/Shri Vijayabalan, Advocate, B. Kumar, Senior Advocate, B. Satish Sundar Dr. S. Krishnandh, Advocate, G. Vijayabalan, Adv. , B. Kumar, Sr. Advocate, Dr. S. Krishnandh, Advocate, Dr. S. Krishnandh Advocate, M.K Arthikeyan, Advocate, M. Karthikeyan, Advocate, K. Arunagiri, Advocate , Dr. S. Krishnandh Advocate, Dr. S. Krishnandh Advocate , For the Respondent : Shri M. Rammohan Rao, J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al manifest under Section 2 (26) of the Customs Act, 1962 on the basis of a request to be made by their steamer agents / liner agents. The adjudicating authority also directed that the goods would be released on provisional basis under section 110A of the Customs Act, 1962 with Provisional Duty Bond for the assessable value and Bank Guarantee for thirty percent (30%) of such value by the individual high sea sellers and the duty would be assessed at merit rate of duty after refilling the same in the names of the high seas sellers. 3.3. Revenue filed appeal before the Tribunal against the adjudication order dt. 8.10.2010 passed by the Commissioner of Customs (Seaport-Import) Chennai. By Final Order No.730-735/2011 dt. 27.6.2011, the Tribunal set aside the order dt. 8.10.2010 and directed the Commissioner of Customs to pass fresh orders after considering the contents of the DRI report and after furnishing copy of the same to the respondents. It is observed by the Tribunal that goods are said to be perishable in nature and therefore fresh orders shall be passed within 2 months from the date of receipt of the order after extending reasonable opportunity to the respondents of being he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods on payment of a redemption fine under section 125 of the Customs Act, 1962. The demand of customs duty shall be paid jointly and severally by the appellants. He also imposed penalties against the appellants. In respect of the past consignments, the adjudicating authority also denied benefit of exemption Notification No.96/2009-Cus. dt. 11.9.2009 and confirmed the demand of duty alongwith interest and also imposed penalties on the appellants. The appellants at serial Nos.1 to 19 above are importer (M/s.Ravi Enterprise), High Sea Sellers, CHA and transporters who filed appeals against Order-in-Original dt. 12.6.2013 and 13.6.2013. It appears that the importer M/s.Shree Maruthi Impex had not filed any appeal against the impugned order. M/s.Ravi Enterprise another importer had filed an appeal against demand of duty but no appeal was filed against rejection of claim of ownership of goods. 4. Appellants are represented by Shri B. Kumar, Senior Advocate, and other Advocates, except Sri Lalit Kumar Jain in Appeal No.C/41959/2013, who filed adjournment application with a request to adjourn his matter. It appears that Shri Lalit Kumar Jain is the transporter and filed stay applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave not been complied with by M/s.Ravi Enterprises and therefore, filing of Bill of Entry cannot be accepted by Customs department. Therefore, the adjudicating authority in terms of order of the Hon'ble High Court should have released the seized goods to high sea sellers on the basis of documents and statutory provisions of Customs Act and Bill of Lading Act etc. i) As regards past consignments, he submits that when Bills of Entry having filed by M/s.Ravi Enterprises and they cleared the goods under Advance Licence DEEC scheme, the inability to fulfil obligations by them, will not enable the authorities to levy duty upon high sea sellers. j) All the past consignments cleared by Ravi Enterprises were supported by a Bond, which were directed to be enforced in the order itself. Therefore, there is no reason to demand duty from the high sea seller. k) Relied on the following decisions in respect of demand of duty by jointly or severally :- a) CC Cochin Vs Trivandrum Rubber Works Ltd. 1999 (106) ELT 9 (SC) b) CC (preventive) Vs Leela Scottish Lace Pvt. Ltd. 2010 (250) ELT 481 (Bom.) 4.2 Sri Arunagiri, Advocate appeared on behalf of importer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly and severally is not repugnant to the scheme of Customs Act, when one considers that the Section 28 refers to person charged with duty and that Section 2 (26) refers to importer being owner or any other person holding himself to be the importer. (f) They have not questioned the High Sea seller agreement. The issue in adjudication is not about agreement between High Sea Sellers and Ravi Enterprises, which was not questioned by anybody at any point of time. The issue is only about rejection by Commissioner of request to amend Bills of Entry from the name of Ravi Enterprises to High Sea Sellers. Thus, the claim to consider that they have not endorsed the original documents in favour of Ravi Enterprises is beyond the scope of adjudication and is an effort to get over their liability with respect to fraudulent past consignments and liability to overlook claim of Ravi Enterprises. (g) He relies on the decision of Madras High Court in CC (Sea) Chennai Vs CESTAT Chennai - 2009 (240) ELT 166 (Mad.) which has been affirmed by Apex Court as reported in 2010 (249) ELT A28 (SC). 6. After hearing both sides at length and on perusal of records, we find that the appellant at serial N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication No.96/2009-Cus dated 11.09.2009 for the Bills of Entry as mentioned in the Show Cause Notices. It is seen that the High Sea Sellers claimed the ownership of goods and requested to release the goods to them. The Adjudicating authority confiscated the seized goods of Mulberry Raw Silk yarn of foreign origin and given option to redeem the goods on payment of a fine as per section 125 of the Customs Act 1962. On perusal of Adjudication Order dt. 12.6.2013, we find that duty was demanded jointly and severally. The seized goods were confiscated and redemption fine was imposed, but, it was not mentioned to whom the seized goods would be released. It has demanded interest against 4 noticees, without mentioning the names and therefore such order cannot be sustained 8. In view of the above discussion, we direct the Adjudicating authority to decide the claim of the ownership of the seized goods as claimed by the High Sea Sellers in terms of the order of the Hon'ble High Court on the basis of documents and provisions of Customs Act and Regulations mentioned by the Ld. Sr. Advocate. Thereafter, the demand of duty along with interest and penalties would be determined as proposed i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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