TaxTMI 
TaxTMI 
2020 (9) TMI 133
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....the specifications of the product, the appellants filed Bills of Entry No.7482868 and 7482872 both dated 20.04.2020 applying IGST @ 12%. The Customs Officer at Jaigon Land Customs Station while assessing the said Bills of Entry entertained a view that such goods are classifiable under Tariff Sub Heading 2202 10 under schedule 4 as "water, including mineral water and aerated water, containing added sugar or other sweetening matter or flavor" and thus attracting IGST @ 28% and Compensation Cess @ 12%. The adjudicating authority classified the subject products under the Tariff Sub-Heading 2202 10 scheduling the same as carbonated waters and directed the appellant to pay the differential amount of duty. Being aggrieved, the appellants filed Appeal before the Commissioner of Customs(Appeals), Kolkata. The learned Commissioner of Customs (Appeals) vide Order-in-Appeal No.KOL/CUS(CCP)/AKR/299/2020 dated 08.06.2020 allowed the appeal of the appellant and set aside the Order-in-Original No.01/AC/DHDIVH/ 20-21 dated 06.05.2020 holding the subject products to be classifiable under the Tariff Item 2202 9920 as Fruit Juice based drinks. Subsequently, consignments were allowed clearance (under ....
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.... case of Sai Exports v. Commissioner of Cus. (Port-Import), Chennai 2018 (10) GSTL 161 (Mad.), the Hon'ble High Court of Madras, observed that the assessee had already obtained a favourable order with respect to valuation of knitted polyester fabric from learned Commissioner of Customs (Appeal), against which an appeal was merely pending before Tribunal. Hence, in such a scenario, the department could not insist upon the production of bank guarantee for provisional assessment. Following decisions uphold similar ratio: * J.B.Printing Inks Ltd. v. UOI 1990 (47) ELT 234 (Bom.) * Bhawani Metal Corporation v. UOI 2015 (330) ELT 116 (Cal.) * Chalissery Kirana Mechant v. UOI 2015 (324) ELT 112(Ker.) (d) In light of the aforesaid judicial decisions, it is clearly established that there is no mandate to furnish bank guarantee for the purpose of provisional assessment in cases where the appellate order or an exfacie case is in favour of the assessee. The Appellant humbly submits that present act of the department to enforce 100% bank guarantee upon the Appellant is flagrantly illegal and arbitrary. It is submitted that the impugned order is in total disregard to the applicable legal ....
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....) in favour of the appellant vide the OIA dated 08.06.2020, I see no justification in ordering to furnish 100% Bank Guarantee. This is judicial indiscipline and squarely covered by the ratio of the Hon'ble Supreme Court in the case of Kamlakshi Finance Corporation ( Supra), where the Hon'ble Apex Court has observed thus:- "...............................The principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. The mere fact that the order of the appellate authority is not "acceptable" to the department - in itself an objectionable phrase - and is the subject-matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent Court. If this healthy rule is not followed, the result will only be undue harassment to assessees and chaos in administration of tax laws." 9. Further, as a safeguard measure so that there is no loss of revenue to the Exchequer, the Department may carry on provisional assessment of the consignments being imported by the appellant, but at the same time cannot burden the appellant with the condition of 100% ....
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.... order dated 11-2-2015. The Revenue has not preferred any further appeal against the rejection of the stay petition. The appeal filed by the Revenue is still pending. Thus, as on date, the value declared by the petitioner in respect of identical goods has been accepted by the Commissioner of Customs (Appeals) in the order dated 1-5-2014 and such order has not been stayed by the CESTAT. Mere pendency of an appeal before the Appellate forum will not amount to stay of the order passed by the lower forum/authority. In the instant case, the valuation of the identical goods passed by the Commissioner of Customs (Appeals) is binding on the third respondent. 4. At this juncture, it is worthwhile to refer to the decision of the Hon'ble Supreme Court of India in the case of Union of India v. Kamlakshi Finance Corporation Ltd. reported in 1991 (55) E.L.T. 433 (S.C.). In the said decision, the Hon'ble Supreme Court pointed out as to how the order of the appellate authority binds the lower authority working within its jurisdiction. The relevant portion of the judgment reads as follows. "6.........The High Court has, in our view, rightly criticised this conduct of the Assistant Collectors an....
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....is reproduced:- "7. Having regard to the aforementioned submissions, the short question to be considered is whether the impugned orders are legally sutainable. There is no material in the impugned orders to indicate that the Customs have any doubt regarding the origin of goods. The main reason stated is that another consignment was under investigation by DRI in regard to the origin of the goods. Though, it was argued by the learned Standing Counsel appearing for the respondents that the intention of issuing Exts. P30 to P32 is to conduct an enquiry with reference to the imported material, no material is produced to indicate that either any samples were taken or the same has been sent for analysis. Under such circumstances, we have no hesitation to come to the conclusion that the only reason stated is regarding an enquiry in respect of another consignment which is pending consideration by the DRI. Whether they have any doubt regarding the consignment imported by the petitioner is not borne out by records. Under such circumstances, the direction to call upon the petitioners to furnish Bank Guarantee/Cash deposit to the extent of 35% or 20% of the differential duty as the case may....