BHAGAWATI ELECTRICAL ENTERPRISES Vs. COMMR. OF CUS., HYDERABAD

JUDGEMENT

(1.) ALL the stay applications arise from common Order -in -Original enhancing the valuation of imported ball bearings and imposing penalties on the firm and Proprietor to the following extent:

(2.) THE contention of Ld. Senior Advocate is that the imported goods, ball bearings, to an extent of Rs. 56 lakhs is still under seizure and with the Department. He submits that the Department had initiated proceedings for enhancement of the assessable value. The same was done by Order -in -Original No. 14/2000, dated 18 -12 -2000. On appeal before the Commissioner (Appeals), the Order -in -Original was set aside by Order -in -Appeal No. 01/2001, dated 18 -1 -2001. The Department was aggrieved with the said order and filed an appeal before the CEGAT, however, the same was withdrawn by them on the premise that they had initiated fresh proceedings in view of fresh facts having come to light. The present proceedings is as a result of the show cause notice issued on the fresh facts and order being passed for enhancement of assessments and imposing penalty. Ld. Senior Counsel submits that once the Department has withdrawn the appeal before the Tribunal on the same issue then the principles of res judicata would apply and on this principle the Apex Court judgement rendered in the case of Kunhayammed v. State of Kerala [2001 (129) E.L.T. 11 (S.C.)] and large number of other Tribunal rulings would also apply to the facts of the case. He submits that the second proceedings cannot be initiated once they have withdrawn their appeal before the CEGAT. He submits that the seized goods are still with the Department and hence they be granted waiver in the matter. The party is willing to give an undertaking to the Commissioner not to clear the goods.

(3.) LD . JCDR was called upon to get para -wise comments on the submission made by the Ld. Senior Counsel on 29 -6 -2004. Ld. JCDR has filed the para -wise comments and citations. It is the submission of the Ld. JCDR that the issue is not hit by the principles of res judicata as fresh proceedings were initiated on the basis of new material having come to light and in this regard relies on the Bombay High Court judgement rendered in the case of Union of India v. Loksons (P) Ltd. [1989 (43) E.L.T. 226 (Bom.)] and Tribunal rulings. She submits that the enhanced duty and penalty is required to be deposited for the purpose of hearing the appeal.