KEDIA OVERSEAS LTD. Vs. COMMISSIONER OF CUSTOMS, VISAKHAPATNAM

JUDGEMENT

(1.) M /s. Kedia Overseas Ltd. has filed this appeal impugning an order of the Commissioner (Appeals) dated 22 -9 -2008 vide which he sustained the orders of finalization of provisional assessment of Bills of Entry Nos. 552/2 -8 -2004, 569/12 -8 -04 and 596/19 -8 -2004, Before the Commissioner (Appeals) appellants had challenged the assessment orders on the ground that the orders were passed ex parte and had not borne the counter signature of the Assistant Commissioner/Deputy Commissioner. The lower authority had levied education cess on payment made through DEPB which was contrary to the decision of the CESTAT vide Final Order No. 1347/07, dated 28 -11 -07. The lower authority had wrongly levied interest on warehoused goods for a period within 90 days of warehousing. The palm oil (edible grade) in bulk imported under the subject three Bills of Entry was denied concessional rate of 65% applicable to palm oil (edible grade) and the consignments were assessed to duty at the rate of 75% wrongly. The appellants had prayed for setting aside the assessment orders of the Superintendent of Customs, Kakinada and to allow the appeal with consequential relief.

(2.) VIDE the impugned order, the Commissioner (Appeals) granted relief in respect of education cess and interest under Section 61 of the Customs Act, 1962 for the period of warehousing within 90 days and rejected the prayer for allowing the benefit of assessment of the impugned goods @ 65% ad valorem instead of @ 75% ad valorem already ordered.

(3.) IN the appeal before the Tribunal it is submitted that Port Health Officer had certified the consignments to be palm oil (edible grade). The Commissioner (Appeals) erroneously upheld the assessment of the lower authority holding the goods to be leviable to higher rate of duty. The impugned order was contrary to the ratio of the Final Order of the Tribunal reported in Sarda Agro Oils Ltd. v. Commissioner - 2006 (206) E.L.T. 348 (Tri. -Bang.) and Ruchi Infrastructure Ltd. v. Commissioner - 2004 (168) E.L.T. 49 (Tri. -Bang.) both of which had held that the report of the Port Health Officer would prevail over any other report including that of the Chemical Examiner. The appellate authority had relied on the report of the Chemical Examiner contrary to CBEC Circular No. 85/03 Cus., dated 24 -9 -2003 which mandated that the PHO was the only competent authority for analyzing the food articles. The impugned order had been passed relying on test report of the Chemical Examiner.