2016 (8) TMI 576

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....ent filed two refund claims relating to the Bills of Entry given in the following chart:- Sl. No. Bill of Entry No. Date TR-6 Challan No. Date Amount of ADD paid 1. 3251055 19.04.2011 361 21.04.2011 12,69,892.00 2. 3335501 27.04.2011 568 29.04.2011 11,96,472.00 3. 3516215 16.05.2011 860 19.05.2011 5,94,987.00 4. 4538914 03.09.2011 2717 07.09.2011 5,75,030.00 5. 5903823 03.02.2012 6036 07.02.2012 3,10,060.00 6. 6866287 18.05.2012 1251 25.05.2012 7,34,741.00 7. 6880702 21.05.2012 1271 25.05.2012 9,58,357.00 8. 7124769 16.06.2012 1817 19.06.2012 7,68,641.00 The above refund claims ....

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....05.2012 it was informed by the Dy. Commissioner that it was cleared through RMS where it is mandatory for the importer/ Customs broker to pay the ADD as per rule as it was self-assessed document.  The ld. Departmental Representative claimed that the Dy. Commissioner of Customs also forwarded relevant pages of Bill of Entry on perusal of which it could be seen  that ADD was assessed and out of charge was given only after certification of payment of ADD was given by the importer. (ii)    CESTAT vide its Misc. Order No.AD/M/21/12-Cus and Final Order No.AD/A/10/12-Cus, dated 06.07.2012 (supra) clearly states that levy of ADD should continue at the rate of applicable as per Notification 70/2010-Cus. 4.  &....

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....h, seven were assessed under second check procedure.  In the second check procedure, the Bills of Entry are assessed on the basis of the importer's declaration without examining the goods which are examined at the time of clearance/giving out of charge from the docks. In this case, when the goods were examined, it was found that they were liable to ADD following which the Dy. Commissioner wrote a letter dated 12.06.2015 (mentioned earlier) informing that as per examination order it was directed by the Assessing Officer regarding the payment of ADD manually before giving out-of-charge for clearance of goods. Regarding the 8th Bill of Entry No.6880702, Dy. Commissioner categorically informed that this Bill of Entry was cleared through RM....

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....0/12-Cus, dated 06.07.2012 (supra).  We would like to mention that prima facie there seems to be some force in the respondent's contention and therefore it deserves analysis and finding thereon.  However, we are in effect restrained from doing so (i.e., from analysing and recording our finding on this contention) in view of the fact that the three Member Bench of the CESTAT which passed the Final Order dated 06.07.2012 had taken note of this aspect while setting aside the Notification No.70/2010-Cus and categorically stated as under:- "27.    Keeping in view our findings as above, we set aside the impugned Final Findings of the D.A. dated 26-4-2010 as well as the Customs Notification No.70/2010 dated 25-6-2....