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TMI Blog2005 (4) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner apart from ordering the confiscation of goods seized and its release on payment of redemption fine, demanded duty of Rs. 37,56,389/- and Cess of Rs. 81,979/- along with interest @ 24% in terms of Notification No. 31/97-Cus., dated 1-4-1997. Further he has imposed penalties on both the appellants. The appellants contended that there are certain mistakes which are apparent on the face of record and therefore, prayed for rectification of mistakes by recalling the Final Order dated 29-6-2004. 2. Shri V.M. Doiphode, learned Advocate appeared for the appellants and Smt. Shoba L. Chary, JCDR appeared for the Revenue. 3. The learned Advocate urged the following facts :- (1) In Para 6 of the Final Order, it has been stated that - "t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion No. 49/94-Cus., dated 12-9-94. However he could not produce any evidence or any documents to support that the goods were cleared under Notification No. 49/94-C.E. (N.T.)." It was urged that in respect of the fact that while granting stay, the Tribunal took note of the point of jurisdiction and observed in Para 4 of the stay order dated 24-2-2004 that - "the appellants are having Central Excise registration and the goods were obtained from Grasim Industries Ltd., on the basis of certificate issued by Central Excise Authorities and on execution of bond and bank guarantee and therefore prima facie case appears to be in favour of the applicants that question of jurisdiction required to be examined at the time of regular hearing." Thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the impugned order of the Tribunal has been passed on the basis of recording and considering wrong facts and therefore, needs to be recalled and re-heard for taking note of correct facts on record. The learned Advocate relied on the following judgments :- (a) Gujarat Raffia Industries Ltd. v. CCE, Ahmedabad-II [2004 (165) E.L.T. 331 (Tri. - Del.)] (b) Bussa Overseas Properties Ltd. v. Commissioner of Customs (Import) [2002 (148) E.L.T. 328 (Tri.-Mum.)] 4. The learned JCDR urged that in the Final Order, the Tribunal has considered all the points thoroughly. The applicability of the Central Excise Notification No. 49/94-C.E. was never a point in the original proceedings. The appellant also never raised this issue befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining the facts and the contents of the Notification itself. In a nutshell, the facts are that the appellants never imported goods and procured the required goods as per the Advance Licence, under permission from the JDGFT, from M/s. Grasim Industries. The procurement is indigenous, not imported. These facts are on record and have not been controverted by the Revenue. The Notification No. 31/97-Cus. will be applicable only to imported goods and not to the goods procured indigenously. These facts and points of law which were not appreciated by the Original Authority have been ignored even by the Tribunal. To that extent, there are serious errors apparent on the face of the record. Mere mention of Notification No. 31/97-Cus in the Advance Lic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stand in the present case. Even in the Customs Notification No. 31/97 under which the duty has been demanded as per the Condition (ii), the importer at the time of clearance of the imported material should execute a Bond before the Asstt. Commissioner of the Customs. In this case, first of all, there are no import of goods at all by the appellants under the Advance Licence as the same was barred on a request from them. When there are no imports, there is no question of executing any Bond with the Customs. When such an important condition is not fulfilled, the above notification cannot be invoked to demand Customs duty. The simple legal point is that the Customs duty cannot be demanded on indigenously procured goods. In view of the above ob ..... X X X X Extracts X X X X X X X X Extracts X X X X
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