KEDIA OVERSEAS LTD. Vs. COMMISSIONER OF CUSTOMS, VISAKHAPATNAM

JUDGEMENT

(1.) BOTH the stay applications pertaining to the importers are taken up together for consideration. The appellants imported non -edible crude grade palm oil to an extent of 2000.452 Mts in the case of M/s. Kedia Overseas and 1000.862 Mts in the case of M/s. Foods. Fats & Fertilizers Ltd. The appellants had cleared 500 Mts of non -edible crude palm oil. Provisionally under bond by paying duty in the terms of the impugned order. A penalty of Rs. 2.5 lakhs has been imposed besides fine of Rs. 9 lakhs,. The impugned order in respect of M/s. Kedia also grants re -export of 1500.452 Mts on payment of fine and penalty. In respect of M/s. Foods, Fats & Fertilizers Ltd., the Commissioner has granted re -export on payment of fine besides imposing penalty of Rs. 1.25 lakh. The appellants seek for waiver of penalty and fine and listing the appeal for out of turn hearing. They also seek for an interim order to export the goods in terms of the impugned order without paying the differential duty, fine and penalty as the same is not imposable in terms of the Tribunal Ruling rendered in the case of CC Mumbai v. B. Arunkumars International Ltd. - 2004 (177) E.L.T. 152. The counsel submits that there is no misdeclaration as all the details had been furnished and the department was aware of the details and question of suppression or misdeclaration does not arise.

(2.) LEARNED DR defends the order and submits that they have to deposit differential duty, fine and penalty if they seek to re -export the quantity of goods in terms of the impugned order. He opposes the prayer for early hearing. He also submits that appropriate differential duty has been claimed on 500 Mts of goods provisionally cleared. However on my reading of the order rendered in the case of M/s. Kedia. It reads as follows : - I allow re -export of 1500.452 Mts of non -edible grade crude palm oil in question subject to payment of appropriate differential duty along with interest on 500 Mts of non -edible grade crude palm oil already cleared provisionally, redemption fine and penalty. Assistant Commissioner may finalize the assessment pertaining to the Bills of Entry 381/21 -5 -2005 and 387/24 -5 -2005 covering 500 Mts immediately to enable the importer to re -export. On our further consideration in the light of the citations, the appellants are entitled to seek re -export of the goods without payment of fine and penalty at this stage. As they have made out a strong case on merits, the requirement of pre -deposit of fine and penalty in respect of 500 Mts provisionally cleared is also waived. As the re -export of the goods is subject to payment of appropriate differential duty in terms of the order, therefore, learned counsel seeks for early hearing of the appeal. The same is allowed. The stay applications are allowed unconditionally and the prayer for re -export is also allowed without payment of fine and penalty. The appellants shall execute a bond to the Commissioner to the extent of duty fine and penalty liable to be paid by them on the 500 Mts released provisionally and goods to be exported in both the appeals. On such execution of bond, the appellants are entitled to re -export the goods. Appeals to come up for hearing on 19th January, 2006.