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TMI Blog2017 (4) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... indemnity in the format prescribed is furnished by the assessee, the assessee will not get the benefit of the Tribunal's order nor a drawback in terms of the same - notice of motion fails - appeal dismissed. - Notice of Motion No. 2275 of 2016, Customs Appeal No. 9 of 2016 - - - Dated:- 3-4-2017 - S. C. Dharmadhikari And Prakash D. Naik, JJ. Mr. Pradeep S. Jetly a/w. Mr. Jitendra B. Mishra, Advocate for the Applicant / Appellant Mr. Rafique Dada, Senior Counsel a/w. Mr. Vipin Kumar Jain, Mr. P.K. Shetty, Mr. Krishnan Kumar, Advocate for the Respondent ORDER P.C. On the earlier occasion and even today we have heard both the sides. 2 This is a Notice of Motion by the Revenue. 3 The applicant Commissioner of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l is pending even at the instance of the Revenue, then, the Tribunal's order is questionable and vulnerable. Such an order which is at large and the correctness and legality of which is under consideration of this Court, should not be allowed to be implemented. If that is allowed to be implemented, it would mean this Court renders the Revenues' Appeals infructuous. 7 It is argued by Mr.Jetly appearing in support of this Motion that whenever any reasonable request is made by the assessees, even pending the Appeals, the Revenue has agreed to accommodate them. There were further vessels which were to be imported and brought in this country so as to allegedly comply with the contractual obligation with the Oil and Natural Gas Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seized. The other seven were not available for seizure. Thereafter, certain amounts were paid allegedly because of short payment of duty. Upon adjudication, the adjudicating authority confirmed the entire demand of customs duty. That was reduced by the CESTAT to the extent of drawback, that would have been available to the respondent assessee at the time of re-export of the vessels. The respondent's Appeals are only raising the ground that the CESTAT should have entirely set aside the adjudication order in the light of a circular dated 13th June, 2012. 9 Now, the Revenue seeks a unconditional stay of the Tribunal's order. That is not proper as that would mean allowing the Appeal of the Revenue at this stage itself. That would me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... give such an indemnity in a particular format. A copy of the letter dated 15.2.2017 is annexed hereto and marked Exhibit 'C'. 14 I further submit that out of the ten appeals, the issues in three appeals is covered by the judgment of the CESTAT in the case of Sedco Forex International Drilling Inc. v. Commissioner of Customs 2001 (135) ELT 625, which has been affirmed by the Apex Court reported in 2005 (179) ELT A 39. Insofar as the other seven appeals are concerned, the issue in dispute is settled by the judgment of this Hon'ble Court in the case of Commissioner of Customs V. Finesse Creation Inc 2009 (248) ELT 122, which has been maintained by the Apex Court. The said decision has also been followed by this Hon'ble C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial. There is no rejoinder affidavit. There is no justification as to why the revenue is resisting the request of the assessee to grant the drawback. More so, when the assessee is ready and willing to execute an indemnity so as to indemnify the revenue. In the event the Appeal succeeds, the assessee has undertaken to pay the duties with statutory interest of 15% as of date. 14 These statements made on affidavits can be safely accepted as undertakings given to this Court. We do not see how the Revenue, therefore, is prejudiced. The Revenue cannot argue that it will comply with the order of CESTAT qua one vessel only or qua one drawback application. Once the stand is made clear on affidavit and there is an order of sanction passed on 25t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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