2017 (4) TMI 785

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....tion seeking the following two reliefs: "a) that pending the hearing and final disposal of the above Appeal and all other connected Appeals this Hon'ble Court may be pleased to stay the operation of CESTAT Order No.S/990- 995/13/CSTB /C-I and A/1469-1490/13/CSTB/CI dated 09-07-2013 inter-alia passed in Appeal Nos.C/86212/2013 and C/86215/2013-Mum. b) that pending the hearing and final disposal of the above Appeal and all other connected Appeals this Honourable Court may be pleased to stay the hearing of the Miscellaneous Application No.C/MA (ORS) 92993/15 pending before the CESTAT." 4 In the affidavit in support it is stated that the Revenue has filed an Appeal in this Court aggrieved and dissatisfied with the Tribunal's orde....

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....o objection. The same expectation now is entertained by the Revenue. Even the assessee should not complicate the matter by pressurizing the Revenue. The attempt is to go before the Tribunal, file a Miscellaneous Application in the nature of execution and pressurize the Revenue to part with huge sums. If the applications for drawback are allowed and during the pendency of the Appeals huge amounts are paid, then, it would be difficult to recover them. Hence, the Motion may be allowed. 8 An affidavit-in-reply is filed to this Notice of Motion. The assessee has contested this Motion by pointing out that there is absolutely no substance in the contentions of the Revenue. The Motions moved by the assessee in the Appeal before this Court, are not....

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....eeks to justify the invocation of Rule 41 of the Rules styled as CESTAT Procedural Rules, 1982. 11 We are not concerned with this aspect of the matter. We only reproduce for the present purpose two paragraphs of the affidavit-in-reply at pages 43 and 44 of the paper book, namely, paragraphs 13 and 14 : "13 With respect to para 16 of the Affidavit, I say that no ground whatsoever have been made out in the Notice of Motion or the Affidavit in support therefore, for seeking a stay against operation of the CESTAT order dated 9.7.2013. I submit that in fact, out of the ten appeals, in respect of Customs Appeal No.90 of 2014, only a few days back, the Appellant has implemented the order of the CESTAT by sanctioning drawback due to the Shipping....

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....) ELT 197 and Commissioner of Customs v. National Leather Cloth Mfg. Co. 2015 (321) ELT 135 wherein it has been held that in the absence of there being seizure of goods under the Customs Act, there cannot be a demand for customs duty under Section 125 thereof. Insofar as demand under Section 28 of the Customs is concerned, the CESTAT has categorically recorded that there was absolutely no suppression of facts on the part of the respondent and inter alia observed that on the arrival of vessel in India, same was boarded, an IGM was filed, an entry inward was made, and the Revenue was aware of the stand that the vessel was being regarded as a conveyance and not goods, in respect of which a Bill of Entry was required to be filed and duty paid. ....