(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1. We have heard Ms.Ami Yagnik, learned counsel appearing for the appellant. This Appeal has been admitted on the following substantial question of law.
Whether the Tribunal below committed substantial error of law in holding that the letter dated February 07,2005 of the Superintendent of Customs, Customs House, Jamnagar, could not be considered as appealable order and that minimum obligation on the part of the Revenue was to supply a copy of the bill of entry to the respondent when the said triplicate bills of entry were already lying with the respondents.
2. The brief facts are that M/s. Ruchi Soya Industries Ltd. had filed three bills of Entry No.F-371 to F-373 all dated 2.9.2002 for import of "Crude Degummed Soyabean Oil of Edible Grade in Bulk" which was proposed to be assessed by taking tariff value under section 14(2) of the Customs Act, 1962 fixed vide Notification No.30/2001-Cus dated 3.8.2001 as amended vide Notification No.60/2002-Cus dated 2.9.2002.
3. Being aggrieved, the respondent Ruchi Soya Industries Ltd. filed Special Civil Application No.9306 of 2002 before this Court, wherein by way of interim order dated 7.10.2010, a direction was issued that importer shall furnish a bank guarantee for differential duty of customs payable under section14(1) and section 14(2) of the Customs Act,1962. It was clarified in the order that this arrangement would be subject to the order to be made by the revenue of final assessment and the copy of the assessment order shall be filed alongwith affidavit-in-reply.
4. In pursuance of the order dated 7.10.2010 passed by the High Court, the Superintendent of Customs by its letter dated 7.2.2005 informed the respondent and finalised the assessment under section18(2) of the Customs Act that customs duty is finalised under section 18(2) of the Customs Act, 1962 by taking tariff value as fixed vide notification No.60/2002-Cus(NT) dated 2.9.2002 issued under section 14(2)of the Customs Act, 1962. The respondents were also directed to pay differential duty of Rs. 45,99,006/- arising out of the final assessment, failing which bank guarantee furnished by the respondent will be encashed. The said letter dated 7.2.2005 has been undisputedly received by the respondents on 8.2.2005. The respondents informed the Superintendent of Customs by their letter dated 16.2.2005 that since writ petition filed by the respondent is sub judice and was pending disposal before the High Court, therefore, bank guarantee cannot be invoked. The Superintendent, Customs Department informed by letter dated 16.2.2005 that since the High Court has ordered that arrangement of furnishing bank guarantee for the differential duty of customs payable under section 14(1) and 14(2) of the Customs Act, 1962 would be subject to order to be made for final assessment. Therefor,no sooner the assessment is finalised, the respondents were required to pay differential duty immediately otherwise bank guarantee furnished by them would be encashed. On 15.12.2005, the respondent submitted entry no.F-371 to F-373 with the Superintendent of Customs and it was requested that copy of the final order be provided to them alongwith the copy of the bill entry. The Superintendent, Customs, made an endorsement of final assessment dated 7.2.2005 on the triplicate bills of entry submitted by the respondent and returned it to the respondent alongwith letter dated 16.12.2005.
5. The respondent challenged the final assessment order dated 7.2.2005 by filing an appeal before Commissioner (Appeals), Customs, Jamnagar under section 130 of the Customs Act, 1962 who has dismissed the appeal as time barred on the ground that final assessment order was made on 7.2.2005 and it was communicated to the respondent on 8.2.2005. Therefore, the appeal was filed with delay. The order of the Commissioner (Appeals), Customs, Jamnagar was challenged by the respondent by filing Appeal No.C/928/2006 before CESTAT, Ahmedabad which has allowed by order dated 13.5.2001 and set aside the Order in Appeal issued by the Commissioner (Appeals) by holding that the letter dated 7.2.2005 can be considered to be a letter of recovery and demand as a consequence of of finalisation of bill of entry, but it cannot be treated to be an order and against it, an appeal could be filed and it cannot be said that it was an appellate order. The Tribunal further held that the communication dated 16.12.2005 showing the bill of entry to the respondent has to be considered as relevant date for challenging the same and since the Commissioner (Appeals) had not decided the issue on merits, the Tribunal remanded the matter back to the Commissioner (Appeals) for a fresh decision on merits.
6. We are in agreement with the view taken by the Tribunal that the Commissioner (Appeals) had not decided the matter on merits and the letter dated 16.12.2005 cannot be considered to be an order passed in Appeal by the Commissioner which could be challenged before the Tribunal. The question of law framed by this Court is answered in the affirmative against department and in favour of the assessee. Therefore, this Appeal is devoid of any merits and it is accordingly dismissed. The parties shall bear their own costs.
(V.M.SAHAI,J) (N.V.ANJARIA,J) ***vcdarji