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TMI Blog2024 (7) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings and it would not be within the ken of Section 27 to set aside the order of self-assessment and reassess the duty for making refund; and in case any person is aggrieved by any order which would include self-assessment, he has to get the order modified under Section 128 or under other relevant provisions of the Act.' The matter requires to be remanded to the Adjudicating Authority for fresh consideration. In such denovo proceedings, the Adjudicating Authority shall give opportunity for personal hearing and to adduce evidence - appeal allowed by way of remand. - MS. SULEKHA BEEVI C.S., MEMBER (JUDICIAL) AND MR. VASA SESHAGIRI RAO, MEMBER (TECHNICAL) For the Appellant : Shri S. Muthuvenkataraman, Advocate For the Respondent : Shri Anoop Singh, Authorised Representative ORDER Brief facts are that the appellant is a 100% export-oriented undertaking issued with private bonded warehouse licence. They are engaged in the manufacture of Plastic Moulded products, Polythene Rolls (Lay Flat Tubings), Polythene Sheeted Rolls, Polythene/PP Sheets, Polythene Bags with handles and without handles out of the HDPE/LDPE/LLDPE/PP granules imported as well as procured indigenously. They e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance with the Foreign Trade Policy, on payment of applicable Goods and Service Tax leviable thereon, or are in stock at the time of exit from the scheme in accordance with the Foreign Trade Policy and in case of waste and scrap within SION or within norms fixed by the Norms Committee or norms as approved by the Board of Approval the exemption in respect of goods imported or procured under this notification would continue to be admissible : Explanation. - For the purpose of this paragraph, on payment of whole of duty of Customs leviable thereon under the First Schedule to the Customs Tariff Act 1975 availed as exemption, under this notification, on the inputs utilised for the purpose of manufacture of finished goods [ other than falling under Fourth Schedule of Central Excise Act, 1944 (1 of 1944) ] before clearance of such finished goods (including by-products, rejects, waste and scrap arising in the course of production, manufacture, processing or packaging of such goods) or services on payment of applicable, Goods and Service Tax leviable thereon, in Domestic Tariff Area or as are in stock at the time of exit, it shall be treated as if no exemption was availed under this notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and when condition in the Notification is fulfilled and redemption of the bond is claimed by the appellant to the Department, corresponding credit entry is given. Such a decision, allowing the appellant to take credit of the duty amount in the running bond is an assessment passed by the officer. Without challenging such assessment, the Department cannot issue a Show Cause Notice for recovery of duty. 2.3 To explain the above argument and the sequence of how the transaction take place, the Ld. Counsel adverted to Letter issued to the appellant by the Department dated 14.07.2017 wherein it is stated that the bond executed by them for Rs.15.26 Crores has been accepted by the Assistant Commissioner of Central Tax, Central GST Central Excise, Virudhunagar on 14.07.2017. This would show that appellant has executed bond as per the condition of the notification. The details of the bond are then entered in the Bond Register maintained at Divisional Office. 2.4 At the time of filing Bill of Entry for import of inputs availing the duty-free benefit as per the notification, a corresponding debit entry is made in the bond. After fulfilment of export in terms of notification, the appellant reque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner (Appeals) for determination of such points as arising out of the decision of the Assistant Commissioner. Without such review/challenge, the notice issued cannot sustain. 2.7 As per Sub-Section 3 of Section 129D, every order for such direction must be made within a period of three months from the date of communication of the decision or order of the Adjudicating Authority. Since the present notice has been issued by the Principal Commissioner as an Adjudicating Authority and the proceeding as contemplated under Sub-Section 2 and 3 of Section 129D of Customs Act, 1962 has not been initiated, the notice issued is vitiated and cannot sustain. The appellant therefore is not liable to pay the duty or interest or penalties confirmed pursuant to such proceedings. It is submitted that though appellant has put forward this argument before the Adjudicating Authority, it was not considered at all and no finding has been rendered in this regard. 2.8 Without prejudice to the above argument, it is submitted that the notice invokes paragraph 3 of the Notification No. 52/2003-Cus dated 31.03.2003 which was introduced w.e.f. 01.07.2017 by amending Notification No. 59/2017-Cus dated 30.06.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Adjudicating Authority imposing penalty of Rs.3 Lakhs requires to be set aside. It is also submitted that Section 117 of the Customs Act, 1962 is not invokable in the facts of the case, and hence no penalty is imposable under the said Section. The Ld. Counsel prayed that the appeal may be allowed. 3.1 The Ld. Authorized Representative Shri Anoop Singh appeared and argued for the Department. It is emphasized by the Ld. Authorized Representative that the appellant has admitted the non-payment of Customs duty in respect of inputs used in the manufacture of finished / semi-finished goods cleared into DTA. During the investigation, the person authorized by the Managing Director of the Company had appeared before the Customs Officer and given statement that they would be paying the Customs duty and complete their liability. 3.2 In regard to the allegation that the Department cannot issue the Show Cause Notice without challenging the assessment (in the nature of granting permission to take credit), the Ld. Authorized Representative submitted that as the violation of conditions of the Notification are established, the appellant cannot then argue that the Show Cause Notice is invali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has some repercussion in terms of tax / duty liability. In the present case, neither is there any Bill of Entry or order of assessment. 3.4 The Customs Act, 1962 provides for definition of the words Bill of Entry and Assessment . So also, there are specific provisions to deal with assessment and self-assessment / reassessment in terms of Section 17 and Section 128 of the Customs Act, 1962. Similarly, there are separate provisions available for amendment of documents like IGM, import report, export report, conversion of bills for warehousing / home consumption, bonds, identity cards, passenger manifest, etc. There are different time limits prescribed for review and appeal against assessment / reassessment proceedings. Every decision cannot be considered as an assessment proceeding. The contention of the appellant that the Letter permitting the appellant to take recredit is to be considered as an assessment cannot be accepted. 3.5 In regard to the contention of having opening stock of inputs as on 01.07.2017, the Ld. Authorised Representative submitted that the appellant has to furnish documents in this regard. With regard to the payment of duty, during the investigation, it is submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bill of entry which cannot be said to be an order much less a speaking order. . . 31 . It is apparent from the aforesaid discussion that the endorsement made on the bill of entry is an order of assessment. It cannot be said that there is no order of assessment passed in such a case. When there is no lis, speaking order is not required to be passed in across the counter affair . 32 . Coming to the procedure of assessment of duty as prevailed before the amendment of the Act prior to the amendment made in Section 17(1) by the Finance Act of 2011, the imported goods or exported goods were required to be examined and tested by the proper officer. After such examination, he had to make an assessment of the duty, if any, leviable on these goods. Under sub-section (3) of Section 17, the proper officer was authorized to require the importer, exporter or any other person to produce any contract, broker s note or any other document as specified in the proviso and to furnish any required information. Notwithstanding that the statements made in the bill of entry relating thereto and the documents produced and the information furnished under sub-section (3); but if it was found subsequently on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.2 It is seen that this contention of the appellant that the order passed by the Assistant Commissioner permitting to take credit as per various Letters amounts to quasi-judicial decisions was raised by the appellant in their reply. However, the Adjudicating Authority has not considered this contention nor rendered any finding in this regard. 5.3 Further, it is submitted that they had opening stock of 19.56 Tons as on 01.07.2017 and had also given proof for this along with their reply. This aspect also has not been taken into consideration while quantifying the duty. Thirdly, the appellant contends that towards the liability in regard to the present dispute, they have paid only Rs.2,17,00,000/- and the balance of Rs.49,00,000/- was paid for the period from January 2019 onwards. However, the impugned order has appropriated an amount of Rs.2,51,00,000/-. All these facts require to be reconsidered. 6. In view of the above, we are of the opinion that the matter requires to be remanded to the Adjudicating Authority for fresh consideration. In such denovo proceedings, the Adjudicating Authority shall give opportunity for personal hearing and to adduce evidence. All the contentions put ..... X X X X Extracts X X X X X X X X Extracts X X X X
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