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TMI Blog2024 (12) TMI 685X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon ble Supreme Court for the CESTAT order dated 18th December, 2023 [ 2024 (1) TMI 683 - CESTAT MUMBAI ]. In the opinion of this Court, the mere pendency of the appeal would not entail the department to insist on provisional assessment of the goods. Since there is no stay of the order of CESTAT, the goods would have to be released in terms of the CESTAT order dated 18th December 2023 as per the classification as directed by the CESTAT i.e., CTH 851770 - the Petitioner shall be entitled to seek release of goods as per the CESTAT order, subject to the final decision of the Supreme Court in the pending Appeal and any directions that may be issued therein, which would have to be complied with. The writ petition is disposed of. - JUSTICE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bservations are relevant and are set out below: 27. On careful examination of the exemption entry at serial No. 13, at notifications dated 01.03.2005, 30.12.2006 and amendment introduced on the said exemption entry on 11.07.2014 indicate clearly that the exemption initially extended to 'All goods' covered under the heading 8517 was restricted in its scope of coverage to 'All goods of heading 8517, other than the specified goods at (i) to (iv) above namely, (i) soft switches and Voice over Internet Protocol (VoiP) equipment, namely, VoiP phones, media gateways, gateway controllers and session border controllers; (ii) optical transport equipments, combination of one or more of Packet Optical Transport Product or Switch (POTP or PO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the sample copy of invoice of Ciena Corporation, USA in which certain goods have been declared under sub-heading 851762. Inasmuch as, firstly the impugned goods needs to be classified under appropriate CTI and thereafter eligibility to exemption benefits has to be determined, we find that the impugned order had not followed this properly in terms of legal provisions of Customs Act, 1962 and the Customs Tariff Act, 1985. Further, inasmuch as All goods of heading 8517, other those specified goods in (i) to (iv) above are exempt from payment of basic customs duty (BCD), and in the absence of any conclusion that the impugned goods are of those category, which are specifically excluded by drawing proper classification and testing by authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. It is the contention on behalf of the Department that under Section 18 (1) (c) of the Act, the Department has the power to insist on provisional assessment when the issue has not attained finality. 10. Under Section 18 of the Customs Act, 1962, provisional assessment of duty is permissible under the following circumstances: 18. Provisional assessment of duty. (1) Notwithstanding anything contained in this Act but without prejudice to the provisions contained in Section 46 [and Section 50] [Inserted by Finance Act, 2018 (Act No. 13 of 2018), dated 29.3.2018.] [(1-A) Where, pursuant to the provisional assessment under sub-section (1), if any document or information is required by the proper officer for final assessment, the importer or ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for home consumption or exportation, the amount paid shall be adjusted against the duty finally assessed and if the amount so paid falls short of, or is in excess of [the duty finally assessed] [ Substituted by Act 56 of 1974, Section 3 and Schedule II, for the finally assessed (w.e.f. 20.12.1974).], the importer or the exporter of the goods shall pay the deficiency or be entitled to a refund, as the case may be; (b) in the case of warehoused goods, the proper officer may, where the duty finally assessed is in excess of the duty provisionally assessed, require the importer to execute a bond, binding himself in a sum equal to twice the amount of the excess duty. (3) The importer or exporter shall be liable to pay interest, on any amount p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... export duty as specified in section 26; (e) drawback of duty payable under sections 74 and 75. 11. In fact, in terms of the notification dated 25th November, 2011, provisional assessment is to be made when the importer is unable to make a self-assessment or if any of the conditions under Section 18 (1) of the Customs Act, 1962 are satisfied. 12. There is no other ground urged by the Department except the fact that the appeal is pending before the Hon ble Supreme Court for the CESTAT order dated 18th December, 2023. 13. In the opinion of this Court, the mere pendency of the appeal would not entail the department to insist on provisional assessment of the goods. Since there is no stay of the order of CESTAT, the goods would have to be release ..... X X X X Extracts X X X X X X X X Extracts X X X X
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