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Commissioner (Appeals) allowed appeal for earlier period - Ordering pre-deposit of full duty in another appeal of identical issue is not correct - Petitioner is entitled for full waiver: HC

By TIOL News Service

CHENNAI, DEC 21, 2016: THE petitioner has challenged the order passed by the Commissioner of Customs [Appeals] in the stay petitions filed by the petitioner in the appeals preferred against the order-in-original with regard to the classification of the goods which are imported by the petitioner. In the Bill of Entry No.639031 dated 05.01.2008, the petitioner declared the goods as "Low Noise Block Down Converter" and classified the same under CTH 85437099. However, the Adjudicating Authority, by order dated 06.11.2013, classified the product as "Universal Single KU Low Noise Booster" under CTH 85299090 and demanded differential duty of Rs.1,58,548/-. When the petitioner sought for stay of this order, the Commissioner [Appeals] has directed that the entire amount to be pre-deposited for being entitled to an order of stay.

The Petitioner submitted that they have made out a prima facie case before the Commissioner [Appeals] inasmuch as in respect of an identical import, the Commissioner [Appeals] has passed an order in favour of the petitioner in Order-in-Appeal No.580/2013 dated 04.04.2013. Apart from that, the petitioner relied upon a Circular No.13/2013 issued by the Central Board of Excise and Customs dated 05.04.2013. Therefore, the Commissioner [Appeals] ought to have granted stay of demand of the differential duty and heard the appeals on merits.

After hearing both sides, the High Court held:

+ Insofar as the aspect relating to prima facie case is concerned, this Court is of the view that in respect of the identical import, the Commissioner [Appeals], in the Order-in-Appeal No.580/2013 dated 04.04.2013, has accepted the petitioner's classification of the goods as "CTH 85437099". That apart, Circular No.13/2013 dated 05.04.2013, also prima facie appears to be fully in favour of the petitioner. Thus, the petitioner has been able to establish a prima facie case, which also would lien in favour of the petitioner while considering the aspect of balance of convenience.

+ With regard to irreparable hardship is concerned, though the petitioner has not pleaded any financial difficulty, since the issue is covered by Circular issued by the Central Board of Excise and Customs and the order passed by the Commissioner [Appeals] in assessee's own case in Order-in-Appeal No.580/2013 dated 04.04.2013. This Court is convinced that the petitioner is entitled to an order of stay without any condition for being able to contest the appeal before the Commissioner [Appeals].

+ Accordingly, the writ petitions are allowed and the impugned orders in F.No.C3/1226 & 1228/D/2013-SEA dated 23.01.2014 are set aside and there will be an order of stay of the order-in-original dated 05.11.2013, till the appeals are heard and disposed of by the Commissioner (Appeals).

(See 2016-TIOL-3064-HC-MAD-CUS)


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