TaxTMI 
TaxTMI 
2017 (11) TMI 1007
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....any filed a Bill of Entry No. 2376 for 2563.2 kilograms of Synthetic Fabric/Stock Lots imported from China, declaring classification under sub-heading No. 5407 52 90 and claiming concessional rate of Customs duty. The Customs Officer received a report dated 16-10-2003 from the Kandla Customs Laboratory in connection with the above goods. He, however, did not agree with the report and hence, sent the samples to the Textile Committee, Mumbai for ascertaining the nature of the goods. In the meanwhile, the Assessing Officer made an order of provisional assessment on the Bill of Entry stating on the bill itself that provisional assessment was for awaiting the report of the Textile Committee, Mumbai. 3. In February, 2004, the petitioner company paid the duty assessed provisionally and cleared the goods to their unit, and a small quantity of the imported materials was sold in the local market on payment of central excise duty under two central excise invoices. The Assessing Officer, by an order dated 9-3-2007, unilaterally finalized the assessment by adopting the assessable value as Rs. 20,66,877/- and determined the import duty chargeable at Rs. 71,57,744/-. It appear....
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....ent of value as well as differential duty demand. Against the said order, the Commissioner of Customs, Kandla has preferred an appeal before the Customs, Excise and Service Tax Appellate Tribunal, Ahmedabad (hereinafter referred to as "the Appellate Tribunal"). Vide order dated 4-10 2016, the Appellate Tribunal has allowed the application for condonation of the delay caused in filing the appeal, and the appeal is now pending for decision on merits. 6. As noticed hereinabove, previously a show cause notice dated 6-9-2007 had been issued to the petitioners, containing proposals for change in classification of the goods and demand of differential customs duty at Rs. 71,57,744/-. In response to the show cause notice dated 6-9-2007, the petitioners filed a substantive reply dated 30-8-2016, inter alia, pointing out that the proceedings have now culminated into Revenue's appeal before the Appellate Tribunal and that the show cause notice dated 6-9-2007 deserves to be vacated and dropped at once because demand of customs duty and also confiscation of the materials imported vide Bill of Entry No. 2376 dated 25-9-2003 have already been ordered by another competent Customs Officer, n....
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.... demanded, it is not permissible for the Commissioner of Customs, Kandla to pursue another show cause notice issued by him for the same subject matter, namely, demand of differential customs duty aggregating to Rs. 71,57,744/- for the same goods covered under the above referred Bill of Entry. It was contended that when a regular adjudication for the same subject matter has already been made by a competent customs officer and the orders made in such adjudication and appeal proceedings are now pending before the Appellate Tribunal for deciding whether the above referred duty demand on the materials imported vide Bill of Entry dated 25-9-2003 was legally correct or not, the same authority who has filed the appeal before the Appellate Tribunal on behalf of the Customs Department has no jurisdiction to continue with another show cause notice involving the same cause and the same subject matter. It was contended that initiating parallel and multiple proceedings against a citizen for the same cause and subject matter is contrary to the sound public policy, and such parallel proceedings are also in the nature of abuse of the process of law. 8.1 It was submitted that in case t....
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....ices is the same, does not merit acceptance. It was, accordingly, urged that the petition being devoid of any merit or substance, deserves to be dismissed. 10. A perusal of the record of the case reveals that in show cause notice dated 6-9-2007 which has been issued first in point of time, the Deputy Commissioner of Customs had, inter alia, noted that the unit imported the impugned goods without payment of duty by claiming exemption under notification dated 19-10-2000; as per the terms and conditions of the said notification, the said goods were exempted when imported into India for the purpose of manufacture of goods and export thereof; and that in this case, the said purpose of manufacture of goods out of the imported goods and export thereof was not achieved. It is further noted in the show cause notice that in this case, the unit had removed the imported goods as such into DTA. In other words, no production or manufacturing activity was undertaken on the imported goods. Ultimately, by the said show cause notice, the petitioner was called upon to show cause as to why (i) the said 25,603.2 kg of imported Synthetic Fabric Stock Lot (100% Polyester Plain Dyed Fabric) should....
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....emsp;I order to classify the imported goods mentioned in the said Bill of Entry No. 2376, dated 25-9-2003 under chapter sub-heading No. 5707 82 90 of the Customs Tariff Act as per the test report mentioned above and not under chapter sub-heading No. 5407 52 90 as claimed by the unit; (b) I order for finalization of provisional assessment of Bill of Entry No. 2376, dated 25-9-2003 by enhancing the assessable value to Rs. 20,66,877/- as explained at above; (c) I order to confirm the duty amount of Rs. 71,57,744/- explained at above on the unit under Section 18(2) of the Customs Act, 1962; and (d) I order for recovery of interest at the applicable rates on the duty amount mentioned at (c) from the first day of the month of the provisional assessment i.e. 1-9-2003 till the date of actual payment under the provisions of Section 18(3) of the Customs Act, 1962." 13. The petitioners carried the matter in appeal before the Commissioner (Appeals), who, vide order-in-appeal dated 11-5-2016, set aside the order-in-original, holding thus : "10. In view of the above discussion and findings, I hold that the Department has not established by any reliable and acce....
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....d and, inter alia, recorded that no manufacturing activity was permitted from new clothes and no special permission was given by the Specified Officer to import the said goods either. Even though not permitted, no manufacturing activities were undertaken by the unit, as they have no manufacturing facility but were having only rags cutter machines and bailing machines in their sheds and they did not use the goods for the intended purpose. That instead of using the said goods for the intended purpose for which they were imported, they cleared such goods in the original form into DTA by mentioning CTSH No. 6309/631090 (as old and used worn clothes) with payment of duties and without the knowledge of the department. The adjudicating authority also recorded a finding that the sale/diversion of the imported goods imported vide the said Bill of Entry as such in original form was enquired and found to be correct by the DRI during their investigation, which was accepted by the Directors of the unit, and a case was booked against the said unit. The adjudicating authority has referred to the pendency of the show cause notice dated 6-9-2007, and has observed that it is clearly understood that,....
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....sequent to the import of goods. The adjudicating authority, however, while deciding the show cause notice dated 18-12-2008, included the issue of diversion, which was already subject matter of the show cause notice dated 6-9-2007 and in the order-in-original made pursuant thereto, has given specific findings on the aspect of diversion and has confirmed the duty demand with interest. 18. On a conjoint reading of the show cause notices dated 18-12-2008 and 7-9-2007, it is apparent that both arise out of the same subject matter, viz., Bill of Entry No. 2376, dated 25-9-2003. In both the show cause notices, a duty demand of Rs. 71,57,744/- is sought to be made under Section 18(2) of the Act together with interest. In the show cause notice dated 7-9-2007, additionally there are proposals for confiscation of goods and imposition of penalty. However, insofar as the duty which is sought to be levied is concerned, the scope of both the show cause notices is identical. It cannot be gainsaid that one of the basic issue that arises in the context of both the show cause notices is as to whether the duty demand should be confirmed. Since the levy of duty is based on the premise that the ....