MARINA SHOES LTD. Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) LOWER authorities have demanded a total amount of duty of Rs. 11.1 lakhs from the appellants in respect of 'unit soles' imported by them and cleared under two Bills of entry. It has been found that the assessee had availed the benefit of Notification No. 32/97 on the goods after having taken DEPB benefit in terms of Notification No. 34/97. It is submitted by Ld. Counsel that the export obligation in respect of imported raw material was fully discharged by them and therefore the benefit of exemption under Notification No. 32/97 was not to be denied on any extraneous grounds. According to Ld. Counsel, the factum of the assessee having taken DEPB benefit is extraneous to the question whether the benefit of Notification No. 32/97 is available to them. In other words, the only factor to be considered is whether the conditions of the Notification 32/97 were fulfilled or not. Ld. SDR, on the other hand, relies on the Board's Circular No. 26/2002 -Cus., dated 16.5.02 and submits that the importer was not eligible for double benefit. They could avail exemption under Notification No. 32/97 only without claiming the benefit of DEPB Scheme. After examining the submissions made by both sides, we are of the view that, prima facie, it was not open to the assessee to claim both the benefits in respect of the same goods. They could claim only one of these. Hence, considering the Revenue's interest in terms of Section 129E of the Customs Act, we take the view that the assessee should deposit 50% of the duty demanded, for the purpose of the said provision of law.

(2.) LD . Commissioner (Appeals) dismissed the assessee's appeal for want of pre -deposit of duty, without examining the merits of the case. The impugned order was passed without offering any opportunity of being heard, to the appellants. Now, we are directing the appellants to pre -deposit certain duty amount for the purpose of Section 129E of the Customs Act. This deposit can be made so as to enable the lower appellate authority to dispose of their appeals on merits. Accordingly, we set aside the impugned order and allow the present appeals by way of remand, directing the Commissioner (Appeals) to dispose of the assessee's appeals afresh, subject to pre -deposit, by the appellants, of 50% of the duty demanded by the original authority. It is made clear that the pre -deposit shall be made within a period of 4 weeks from today and compliance shall be reported to the lower appellate authority. Ordered accordingly.