Shreeji Gems Ltd vs Commissioner Of Customs

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI

COURT No.II

APPEAL No.C/1162/04

(Arising out of Order-in-Appeal No.16/2003 AP TE (Airport) dated 17/01/2003 passed by Addl. Commissioner of Customs (Appeals), Mumbai)

For approval and signature:

Honble Mr.S.S.Garg, Member (Judicial) Honble Mr. Raju, Member (Technical)

1. Whether Press Reporters may be allowed to see :No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the :Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy :Seen of the Order?

4. Whether Order is to be circulated to the Departmental :Yes authorities? ========================================

Shreeji Gems Ltd., Appellant Vs. Commissioner of Customs, Respondent Mumbai

Appearance: Shri.Anil Balani, Advocate for appellant Shri.C.Singh, Asst. Comm. (AR), for respondent

CORAM: Honble Mr. S.S.Garg, Member (Judicial) Honble Mr. Raju, Member (Technical)

Date of Hearing : 27/10/2015 Date of Decision : 27/10/2015

ORDER NO

Per: S.S.Garg

1. This appeal is directed against Order-in-Appeal No.16/2003 AP TE (Airport) dated 17/01/2003 passed by Addl. Commissioner of Customs (Appeals), Mumbai, whereby the appeal of the appellant was dismissed.

2. Briefly, the facts of the case are that M/s.Shreeji Gems Ltd., is having its unit in SEEPZ, registered as 100% EOU and licence to manufacture amongst them, studded jewellery made of gold. The appellant has necessary approval from the Development Commissioner, Seepz and had executed the necessary bond and undertaking required under the Customs Act and notification. They have necessary facilities for recovery of gold from waste and scrap. On 11/11/1995, the officers of marine preventive visited the unit and verified the stock of gold and also scrutinized with their documents. They alleged that there was a gap between physical stock and recorded gold as per register. The appellant explained that the gap is on account of work in progress and also waste and scrap which contained gold. On 26/04/1996 a show-cause notice was issued alleging shortage of 1109.30 grams valued at Rs.4,36,421/- on which duty payable was Rs.3,16,405/-. On 21/05/1996 reply was filed and it was submitted that the appellant has recovered the metal from dust and slurry and credited to the gold account. Thereafter on 13/11/97 the Assistant Director (R&I) Division, Mumbai, issued show-cause notice alleging that on 11/11/1995 when the officers visited the premises. The appellant could not account for the entire imported gold and there was shortage of 1436.03 grams of gold valued at Rs.6,43,341.44 on which a duty of Rs.4,66,422.54 was payable.

3. The appellant filed the reply on 28/01/1998 upon the show-cause notice and explained the whole process and submitted that there was no shortage of gold and therefore, no proceedings under Section 111 (o) and 112 of the Customs Act can be initiated against him. The appellant also submitted reply on 27/02/2001 and denied the allegations. The Additional Commissioner as adjudicating authority held that there was shortage of 1436.03 grams of gold on which duty of Rs.4,66,423/- was payable under Section 28 of the Customs Act and also imposed penalty of Rs.64,000/-.

4. The appellant filed appeal before the Commissioner (Appeals) who rejected the appeal on non-payment and thereafter the appellant deposited the entire amount of Rs.5,30,523/- (duty plus penalty) on 08/04/2002 and requested to review the order but the request was rejected on02/09/2004 which was received by the appellant on 08/09/2004. Thereafter the appellant filed the present appeal.

5. Learned Counsel for the appellant submitted that vide letter dated 10/06/2004 the appellant requested the learned Commissioner for reviewing of the order of dismissal dated 17/01/2003 on the ground that he had paid the entire amount. He also submitted vide letter dated 02/09/2004 he was informed that his review request has been rejected.

6. On the other hand the learned AR supported the findings of the Commissioner.

7. On hearing the Counsel for the appellants and on perusal of the records, we find that there is no dispute with regard to the deposit of entire amount by the appellant. In view of this fact, we are of the considered opinion that the order of the Commissioner rejecting the request of review is liable to be set aside and we accordingly do so. After setting aside the order dated 17/01/2003, we remand the case to the learned Commissioner with direction to decide the case afresh on merit after giving due opportunity to the appellant. Consequently, the appeal is allowed by way of remand.

(Operative part of the order pronounced in Court)

(Raju) Member (Technical) (S.S.Garg) Member (Judicial)

pj

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