2015 (12) TMI 241

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....nd that both the Appellant companies; namely M/s. Terapanth Foods Limited (in short M/s. Terapanth) and M/s. The Kutch Salt & Allied Industries Limited (in short M/s. The Kutch), filed shipping bills for export of Iron Ore Fines. Show cause notice dated 06.09.2013 was issued to M/s. Terapanth proposing for finalisation of assessment and demand of differential duty on finalisation of the assessment in respect of two shipping bills both dated 10.04.2012 under Section 18 (2) of the Customs Act, 1962. Further, it was proposed to demand of duty along with interest and to impose penalty, on undervaluation of goods in respect of other three shipping bills dated 27.09.2011, 25.07.2011 and 03.05.2011 under Section 28 of the said Act, 1962. In the ca....

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....ction 28 of the Act, which was not proposed in the show cause notices. 6. The matter was heard at length on 21.09.2015 and the learned Authorised Representative for the Revenue sought time to take instructions from the Commissionerate on this issue. Today, the learned Authorised Representative placed a copy of letter dated 13.10.2015, issued by the Principal Commissioner, Customs, Customs House, Kandla addressed to Additional Commissioner (AR), CESTAT, Ahmedabad. The relevant portion of the said letter dated 13.10.2015 is reproduced below:- "2. The status of Shipping Bills have been checked online and the EDI System shows the status of all the Shipping Bills (involved in the matter in respect of M/s Terapanth Food Pvt. Ltd & M/s....

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.... of Section 18(2) (a) of the said Act, 1962. In this context, show cause notice dated 06.09.2013 in the case of M/s. Terapanth, may be referred, as under:- "The Shipping Bill Nos. 8410415 and 8412947 both dated 10.04.2012, wherein the assessment is provisional, should not be assessed finally, by charging the export goods to appropriate duty @ 30% ad valorem, under the provisions of Section 18(2) of the Customs Act, 1962, read with Section 17, ibid." 8. Section 18 of the Customs Act, 1962 provides provisional assessment of duty. In terms of sub-Section (1) of Section 18 of the said Act, the proper officer may direct that the duty leviable on the such goods be assessed provisionally, if the exporter furnishes such security for the....

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....statutory notice is notice made by legislative enactment. 9. The other issue is undervaluation of the export goods vide Shipping Bill Nos. 5529529 dated 27.09.2011, 4696772 dated 25.7.2011 and 3508730 dated 03.5.2011 in the case of M/s. Terapanth and Shipping Bills Nos. 5455422 dated 17.09.2011, 5599565 dated 27.09.2011 and 5739005 dated 07.10.2011, in the case of M/s. Kutch. The learned Advocate submits that the addition of 10US$ PDMT on the price is only on the basis of statements without considering the documents. Further, they are entitled to benefit of deduction of actual freight on the invoice value. They have produced the documents of actual freight, which were not considered. Furthermore, FOB value would be treated as cum-duty FO....

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....erest of justice. However, the demand of FOB price as cum-duty price for determination of export duty, as held by the Tribunal in the case of Sesa Goa Limited (supra), is liable to be upheld. 12. The adjudicating authority imposed penalty on Shri Babulal Singhvi as he knew that the contract was incorrect with regard to the value of the goods. We find that the issue of FOB price treating as cum-duty price was decided by the Tribunal and the appeal is pending before the Honble Supreme Court. The appellant Company is entitled to the benefit of actual freight. Further, the part of the demand of duty alongwith interest and penalty cannot be sustained. In such situation, imposition of penalty on the Director of the appellant Companies is not ....