AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2008 (12) TMI 154
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....o be listed along with appeal No. C/169/06 by Tribunal's Stay Order No. S-97/07-Cus., dated 14-2-07 in Appeal No. C/30 of 2007. 1.3 Both the cases are interconnected and involve the same party and involve common issues and accordingly, are being dealt with by a common order. 2. Heard both sides. 3.1 The relevant facts, in brief, in Appeal No. C/169 of 2006 are as follows: (a) M/s. Paper Fab International (respondent in Appeal No. C/169/06, and appellant in Appeal No. C/30/07) is a 100% EOU having their unit at 10-A,RIICO Industrial Area, Khushkhern, Alwar and are engaged in the manufacture of Terry towels falling under Heading No. 6302 of the Schedule to the Central Excise Tariff Act, 1985. (b) They imported 1011478 litres of HSD throu....
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.... and 20-12-2004 in respect of HSD proposing demand of additional customs duty imposed under Section 128 of the Finance Act, 2003. The original authority confirmed demand of Rs. 10,43,520/- along with interest. The jurisdictional Commissioner (Appeals) by Stay Order dated 31-8-06 directed the importer to deposit a sum of Rs. 5,32,125/- and by the order dated 29-9-06 dismissed the appeal for non-compliance of the order dated 31-8-06. 4. Learned Advocate for the party made the following submissions: (a) The goods imported through Kandla port have been duly received in the warehouse. Once the goods are received in the Customs bonded warehouse, the jurisdiction of the Customs officer of the port ceases. In support of the contention, he relies ....
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....ehouse, there was no question of collection of duty on the goods entailing any short levy. Therefore, there cannot be any demand under Section 28 of the Customs Act. The demand is therefore, not sustainable. (f) As there is no finding that the appellant committed any act of omission or commission rendering the goods liable for confiscation under Section 111 of the Customs Act, no penalty is imposable on the appellants under Section 112 of the Act. 5.1 We have carefully considered the submissions from both sides. One of the issues relates to the jurisdiction of the officer to issue show cause notice in respect of goods imported by 100% EOU through a Customs Port, That is whether the Officers of Customs in charge of the port of importation ....
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.... the proper officer granting ex-bond clearance. This view of the Tribunal finds support in the Madras High Court decision in the case of Collector of Customs, Madras v. Tungabhadra Fibres Ltd., reported in 1994 (71) E.L.T. 655 (Mad.). The High Court had held that the assessment of goods into bond on a warehousing Bill of Entry is only tentative and such assessment being made only for the purpose of execution of warehousing bond, is not conclusive. Para 6 of the Madras High Court decision reads as follows:- * * * * * ....
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....f 52/03 applies to goods sported for use by 100% EOU. Under these circumstances, the question of applying the said Notification when the goods are cleared as such from 100% EOU without being used in the manufacture does not arise at all. 5.4 The premises of 100% EOU definitely has a licensed warehouse for depositing goods imported duty free and procured duty free. The 100% EOU also has permission to manufacture the goods under bond in terms of Section 65 of the Customs Act. However, to say that the entire premises of 100% EOU is a warehouse and that the goods are not removed for use in the manufacture in bond appears incorrect. The 100% EOU notwithstanding the various benefits availed by them are units in India and the manufacture of excis....
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.... for confiscation under Section 111 of the Customs Act, we find that no penalty is imposable on the appellants under Section 112 of the Act. 5. In Priya Blue Industries Ltd. v. CC (Preventive) [2004 (172) E.L.T. 145 (S.C.)], the Apex Court held that once an order of assessment was passed the duty would be payable as per that order. Unless that order of assessment has been reviewed under Section 28 and/or modified in an appeal that order stands. In the instant case, there was no such review / appeal of the assessment by the competent authority, if such a review was required to determine any liability of STI as per the EOU scheme. 6. The EOU had executed bond for discharging any liability relating to goods warehoused by it before the Commis....