COMMISSIONER OF CUSTOMS, KANDLA Vs. ADANI EXPORTS LTD.

JUDGEMENT

(1.) THIS appeal is filed by the Revenue against Order -in -Appeal No. 54/JAM/2006, dated 8 -3 -2006.

(2.) THE relevant facts that arise for consideration are that the respondents herein, imported 3500.503 MTs of Cotton Seed Oil (Edible Grade), seeking the benefit of duty exemption under Notification No. 20/1999 -Cus., and on 21 -2 -2000, filed 7 Bills of Entry. On 31 -5 -2000, show cause notice was issued to the respondent as to why the differential duty should not be demanded and recovered under Section 28 of Customs Act, 1962, despite their being provisional assessment of Bills of Entry. The show cause notice was adjudicated by the adjudicating authority which was challenged by way of appeal before Commissioner (Appeals), who vide his order -in -appeal, dated 2 -12 -2003, set aside the order -in -original, holding that Show Cause Notice, dated 31 -5 -2000 should not have been issued under Section 28 without finalizing assessment, which was provisional. Aggrieved by such order, Revenue filed an appeal before Tribunal and Tribunal vide Order dated 12 -10 -2004, dismissed the appeal filed by the Revenue. In the meantime, another Show Cause Notice was issued on 24 -4 -2001. The lower authorities entered into correspondence with the respondent. Vide letter dated 14 -11 -2005, the Dy. Commissioner (Customs) supplied the copy of noting to the assessee that had taken place and sought re -assessment of the Bills of Entry, which were incidentally finally assessed on 25 -5 -2001. The adjudicating authority directed the respondent to put up their claim for finalization of assessment, which was responded to by informing the adjudicating authority that final assessment was complete on 25 -5 -2001 and accepted by the Department. On 2 -1 -2006, Dy. Commissioner (Customs) assessed all Bills of Entry without extending the exemption under Notification No. 29(sic)/1999 -Cus., and confirming the differential duty, which was appealed to Commissioner (Appeals) and Commissioner (Appeals) has set aside the Order -in -Original, on the ground that there cannot be any reassessment of Bills of Entry which were finally assessed on 25 -5 -2001. Aggrieved by such order, the Revenue is before us. Ld. A.R. on behalf of the Revenue would reiterate the grounds of appeal.

(3.) LD . AR would submit that the samples of Cotton Seed Oil (Edible Grade) were tested and re -testing was sought by the respondent which was done so by sending remaining samples to Central Revenue Control Laboratory, New Delhi. The test report indicated the free fatty acids at 0.12% by weight. It is his submission that from the said test results, exemption claimed by the assessee would not be available to him. It is his submission that there is no review of the finally assessed Bills of Entry by Dy. Commissioner as Order -in -Original was set aside by Commissioner (Appeals) and which was upheld by the Tribunal, which would indicate that the status of the Bills of Entry continues to be provisional. It is his submission that in this case, substantive condition of seeking benefit of exemption notification was not made and entire case has been decided by Commissioner (Appeals) on the technicalities only. It is the submission that Bills of Entry were stamped 25 -5 -2001 as assessed finally but rate of duty and total amount was yet to be changed on the basis of test results under the impression that less charging has already been given and confirmed.