2010 (7) TMI 190 - AT - Customs

Appeal tribunal directs pre-deposit for customs duty waiver and stay of recovery under Section 138C

The appeal before the Appellate Tribunal CESTAT, Mumbai involved the waiver of pre-deposit and stay of recovery for customs duty on 72 containers and a ... Stay – Import of Container – Secondary evidence produced before Tribunal earlier and Tribunal remanded matter for consideration of same. Commissioner rejected computer print out on ground that it was not secondary evidence. Provision of Section 138C of Custon Act 1962 not taken note of by Commissioner. Held that- assessee expressly or tacitly admitting that they could not establish re export of eight containers. Thus the appellant liable to pre-deposit 1/9th of duty amount. In event of compliance, rest pre-deposit waived Issues involved:Waiver of pre-deposit and stay of recovery in respect of customs duty and penalty; Interpretation of remand order scope; Admissibility of secondary evidence under Indian Evidence Act; Consideration of Section 138C of the Customs Act; Establishment of re-export of containers; Calculation of pre-deposit amount.Waiver of pre-deposit and stay of recovery in respect of customs duty and penalty:The appellant sought waiver of pre-deposit and stay of recovery for customs duty on 72 containers and a penalty imposed on them. The demand of duty was consequential to the denial of the benefit of a specific Notification exempting containers from customs duty subject to conditions, including re-export within a specified period. In the first round of litigation, the party failed to produce basic documents proving re-export and relied on a computer printout as 'secondary evidence.' The Tribunal remanded the matter to the Commissioner to consider this evidence. The present appeal challenges the Commissioner's decision post-remand.Interpretation of remand order scope and admissibility of secondary evidence:The appellant argued that the Commissioner exceeded the scope of the Tribunal's remand order by rejecting the computer printout as secondary evidence. The counsel referred to legal precedents emphasizing the admissibility of such evidence under the Indian Evidence Act. The Tribunal noted that the Commissioner did not consider Section 138C of the Customs Act while assessing the printout's admissibility, which should have been followed as part of the law governing evidence.Consideration of Section 138C of the Customs Act and establishment of re-export:The Tribunal highlighted that every remand order should be treated as an order for a fresh decision in accordance with the law, including specific provisions like Section 138C of the Customs Act. The appellant admitted their inability to establish re-export of eight containers, indicating liability for pre-deposit. The Tribunal directed the appellant to pre-deposit a specific amount within a set timeframe, with compliance leading to a waiver of pre-deposit and stay of recovery for the penalty and remaining duty amount.This detailed analysis of the judgment from the Appellate Tribunal CESTAT, Mumbai covers the issues of waiver of pre-deposit, scope of remand order interpretation, admissibility of evidence, legal provisions under the Customs Act, establishment of re-export, and calculation of pre-deposit amount, providing a comprehensive overview of the case's legal intricacies and outcomes.