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TMI Blog2020 (10) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... he legal action as per law. Importer has to pay the duty immediately or this facility of allowing clearance on the basis of Kaccha Bill of Entry shall be withdrawn. In their submission and arguments appellants submit that they have no grievance with the order of the Commissioner (Appeal) as he has remanded the matter back to the original authority to pass a fresh order (refer para 11), following the principles of natural justice. Their grievance is against the observations made by the Commissioner (Appeal) in para 7, 8 10 (reproduced above in para 3 of this order). The learned counsel submits that as per the observations made in para 10, Commissioner (Appeal) has decided the issue himself upholding the assessment orders enhancing the duty. By doing so he has seriously constrained the original authority from examining the issue afresh and passing the speaking order following the principles of natural justice. In terms of the public notice referred above, it is quite evident that allowing clearance against Kacha Bill of Entry, is a special dispensation made by the revenue for allowing speedy clearance of consignments of certain category of goods. Hence by availing this specia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3699378 18.06.2019 18.06.2019 10 3665829 15.06.2019 15.06.2019 11 3665423 15.06.2019 15.06.2019 12 3648258 14.06.2019 14.06.2019 13 3632895 13.06.2019 13.06.2019 14 3992003 09.07.2019 09.07.2019 15 3910289 03.07.2019 03.07.2019 16 3573291 08.06.2019 08.06.2019 17 3617290 12,06,2019 12,06,2019 18 3555812 07,06.2019 07,06.2019 19 3895913 02.07.2019 02.07.2019 2.0 These bills of entries were system appraised on the basis of the declarations filed by the Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded is not paid, in that situation only such Notice' has to be followed by determination /confirmation of demand by the proper officer after providing him an opportunity of hearing and considering his representation. It appears that in the case at hand the case was at the very initial stage of communication of less charge demand under section 28(1)(b)(ii) of Customs Act, 1962 and the appellant had paid the differential duty. 8. I also find that subsection (4) of section 17 of Customs Act, 1962 empowers the proper officer to re-assess the duty on account of valuation or for any other reason. I also observe that the counter submissions made by the Revenue suggest that the appellant had given in writing his consent about paying differential duty on account of valuation of impugned goods. It is the case of Revenue that there was information of under-valuation by importers of fresh flowers and accordingly a detailed market survey was conducted on two different dates and values of different type of fresh flowers were determined based on such market survey and following deductive value method (Rule 7 of Customs Valuation Rules, 2007) It is worth observing that the impugned bill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 4 to 9.. (ii) The declared value shall be accepted where the proper officer is satisfied about the truth and accuracy of the declared value after the said enquiry in consultation with the importers. (iii) The proper officer shall have the powers to raise doubts on the truth or accuracy of the declared value based on certain reasons which may include (a) the significantly higher value at which identical or similar goods imported at or about the same time in comparable quantities in a comparable commercial transaction were assessed; (b) the sale involves an abnormal discount or abnormal reduction from the ordinary competitive price; (c) the sale involves special discounts limited to exclusive agents; (d) the misdeclaration of goods in parameters such as description, quality, quantity, country of origin, year of manufacture or production; (e) the non declaration of parameters such as brand, grade, specifications that have relevance to value; o the fraudulent or manipulated documents. 10. During the course of personal hearing, it was represented that for 16 cases, there is a contract for the period from 01.05.2019 to 30.04.2021 which shows further r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manded the case to the adjudicating authority for de novo decision as per paragraph No. 11 of the impugned order, but on the other hand, vide paragraph No. 10 of the same order, he has already given a finding that the department had sufficient reason to reject the declared value. (b) He has also justified the action of the department to recover an extra amount from the Appellant without issue of any show cause notice. (c) In effect, therefore, the Commissioner (Appeals) has already tied the hands of the adjudicating authority by giving definite findings on all the issues involved in this case. (d) In the circumstances the directions to re-adjudicate the case becomes just an empty formality. It is clearly not an open remand so much so that the adjudicating authority will be bound to allow the decisions of the Commissioner (Appeals) both on the facts recorded therein as well as the findings on the merits of the case. (e) Thus the findings recorded by the Commissioner (Appeal) at para 7, 8 10 which go contrary to the spirit of para 11, while remanding the matter for de-novo consideration, should be deleted from the order of Commissioner (Appeal) and matter be remanded in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and other diplomatic goods ii. Fresh fruits, flowers and vegetables etc. iii. Frozen food, live animals iv. Radio-active material v. Current newspapers and magazines vi. Airline stores and aircraft parts imported by Airlines vii. Life saving drugs and medical appliances requiring urgent clearance viii. Goods requiring special handling and storage conditions ix. Any other goods not listed above and for which prior permission for direct delivery has been granted by the Addl. / Joint Commissioner concerned. 2. Filing of Kacha Bill of Entry (KBE) KBE shall be filed as a prior entry Bill of Entry in absence of IGM in the System. All other details and procedures shall be as in the case of a normal BE. 3. Appraisement - All KBE s on submission shall be System Appraised on the basis of contents declared by the importer. A challan for payment of duty shall be generated automatically which shall be printed along with assessed copy of KBE. 4 . Payment of Duty - After the challan for payment of duty has been generated, the duty shall be paid at the designated Bank namely, the State Bank of India, IACC branch, Sahar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E presented by the importer along with all original documents of declarations presented for obtaining clearance of goods along with Customs copy of order of clearance. All these original documents shall be sent to the designated auditor in the Internal Audit Department. 7. Delivery of the goods All direct delivery goods under KBE procedure will be delivered from respective Direct Delivery Sheds of Air India and Airport Authority of India 8. Entry of Gate pass- The entry of Custodians Pass details shall be entered as usual. 9. Audit of KBE - Audit of all such KBEs shall be carried out after clearance, on the basis of hard copies of the documents received from the Superintendent /DD Shed on daily basis. All KBE filed are to be audited within three days. The Importer will have to pay the duty, if short levied or not levied, immediately upon the same being communicated to him, failing which not only the action under law will be initiated for recovery of duty not paid/short paid, but the facility of direct delivery will also be liable to be withdrawn. After completion of audit the disposal of the KBE shall be in the same manner as in case of a normal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants submit that they have no grievance with the order of the Commissioner (Appeal) as he has remanded the matter back to the original authority to pass a fresh order (refer para 11), following the principles of natural justice. Their grievance is against the observations made by the Commissioner (Appeal) in para 7, 8 10 (reproduced above in para 3 of this order). The learned counsel submits that as per the observations made in para 10, Commissioner (Appeal) has decided the issue himself upholding the assessment orders enhancing the duty. By doing so he has seriously constrained the original authority from examining the issue afresh and passing the speaking order following the principles of natural justice. 13. In terms of the public notice referred above, it is quite evident that allowing clearance against Kacha Bill of Entry, is a special dispensation made by the revenue for allowing speedy clearance of consignments of certain category of goods. Hence by availing this special dispensation, appellants are bound by the requirements laid down by that public notice, specifically in respect of the payment of duty as per the assessment made. Hence we do not find any merits i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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