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CESTAT Kolkata : M/s. Eastern Metallizing Limited Vs. Commissioner of Customs, Kolkata : 15th March, 2017 Featured

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IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
EASTERN ZONAL BENCH
KOLKATA

Appeal No. C/381/2010
(Arising out of Order-in-Appeal No.KOL/CUS/CKP/251/2010 dated 09.09.2010 passed by the Commissioner of Customs (Appeals), Kolkata)

M/s. Eastern Metallizing Limited
Applicant (s)/Appellant (s)

Vs.

Commissioner of Customs, Kolkata
Respondent (s)

Appearance:
Shri S.K.Meheta, Advocate for the Appellant (s)
Shri S.K.Naskar, AC(AR) for the Respondent (s)

CORAM:
Honble Shri P.K.Choudhary, Member (Judicial)

Date of Hearing: 16.01.2017
Date of Pronouncement:15.03.2017


ORDER NO. FO/75237/2017

Per Shri P.K.Choudhary


1. Briefly stated the facts of the case are that the appellant was issued an advance licence dt. 30.03.1998 for import of duty free goods subject to fulfillment of the export obligation as required under the advance licence. It is the case of the Revenue that the appellant failed to fulfill the export obligation. The Adjudicating Authority confirmed the demand of duty alongwith interest. By the impugned order, the Commissioner (Appeals) confirmed the demand of duty to the extent of Rs.12,95,693.93. The ld. Counsel appearing on behalf of the appellant submits that no show cause notice was issued. There is a breach of principles of natural justice. It is categorically stated that the appellant did not waive the issuance of show cause notice. The ld. Counsel drew the attention of the Bench to the letter dt. 27.12.2007 of the Assistant Commissioner of Customs granting personal hearing.


2. Heard both sides and perused the case records.


3. On perusal of the Adjudication Order, I find that the proceeding was initiated upon receipt of the Order-in-Original dt. 04.08.2004 from the office of Joint Director General of Foreign Trade, Kolkata. It is recorded in the instant Adjudication Order dt. 08.05.2009, that on receipt of the said Order-in-Original from the office of the licencing authority, Show Cause cum Demand Notice was issued to the appellant herein.


4. I agree with the submission of the ld. Counsel that the show cause notice is a pre-condition for demanding duty for violation of the condition of the notification. I do not find any clarity on the facts of the case on issuance of the show cause notice. Therefore, the matter is required to be re-examined on this preliminary issue. In view of the above discussions, the impugned order is set aside. The matter is remanded to the Adjudicating Authority to decide afresh after considering the submissions of the appellant.


5. The appeal is allowed by way of remand.


( Pronounced in the Open Court on 15.03.2017)


S/d.
(P.K.Choudhary)
Member (Judicial)


ss

Additional Info

  • Date Range: Wednesday, 15 March 2017
  • Court/Authority: CESTAT
  • Tax Type: Customs duty
  • Petitioner/Appellant: M/s. Eastern Metallizing Limited Vs. Commissioner of Customs, Kolkata
  • Respondent: M/s. Eastern Metallizing Limited Vs. Commissioner of Customs, Kolkata
  • Appl no. or Appl year: Appeal No. C/381/2010
  • Supreme Court Location: Delhi
  • CESTAT Location: Kolkata
  • AAR Location: Delhi
  • Authority: Supreme Court
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