Commissioner Of Customs (Imports), ... vs M/S Dodsal Enterprises Pvt. Ltd

(Arising out of Order-in-Appeal No. 161/2005/MCH dated 11.4.2005 passed by the Commissioner of Customs (Appeals), Mumbai).

For approval and signature:

Honble Shri Anil Choudhary, Member (Judicial)

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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? ======================================================

Commissioner of Customs (Imports), Mumbai M/s Dodsal Enterprises Pvt. Ltd. Appellant

Vs.

M/s Dodsal Enterprises Pvt. Ltd. Commissioner of Customs (Import), Mumbai Respondent

Appearance: Shri C.M. Sharma, Consultant for Appellant-Assessee

Shri Ahibaran, Addl. Commr. (AR) for Respondent-Revenue

CORAM: SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL)

Date of Hearing: 23.01.2015

Date of Decision: 23.01.2015

ORDER NO.

Per: Shri Anil Choudhary

The present appeals and cross-objection have been filed against Order-in-Appeal No. 161/2005/MCH dated 11.4.2005 passed by the Commissioner of Customs (Appeals), Mumbai.

2. The brief facts are that M/s Dodsal Enterprises Pvt. Ltd. (earlier known as M/s Dodsal Pvt. Ltd.) was awarded a contract by Indian Petro Chemical Ltd. (IPCL) for laying 35 Km long Semi Rich Lean Gas Pipelines between Gas Authority of India Ltd. Complex at Gandhar and IPCLs Complex at Gandhar. The Ministry of Chemical and Fertilizers, Department of Chemical and Petroleum, Govt. of India vide its letter dated 28.11.1997 has certified the goods listed in the enclosed Annexure-I are necessary and essential for implementation of the pipeline project. Thus, the appellant was entitled to import the goods specified in Project Implementation Scheme on concessional rate of duty. Accordingly, the importer applied for registration of their contract under Project Import, 1986 vide application dated 9.1.1997 and the same was registered in Custom House, Kandla and the Registration No. was 3/97. The importer filed the necessary Bond and also executed security deposit of Rs.44 lakhs and thereafter cleared the goods. Four Bills of Entry were cleared at Kandla Custom House and seven Bills of Entry were filed in Bombay Custom House.

2.1 Vide Order-in-Original dated 7.4.2003 passed by the Commissioner of Customs, Kandla, the Bills of Entry were finalized and it was observed as follows: -

I find that the importer has produced enough documentary evidence in support of eligibility of import of the goods at concessional rate of duty and installation/completion of the project. Except in cases where the triplicate copy of Bills of Entry were not available with the importer and the originals of which could not be traced by the department from its records, such Bills of Entry have been reconstructed. I have no option but to accept such reconstructed Xerox copies as authentic document. In respect of the clearances affected through Mumbai Customs, the assessed copes of Bills of Entry are on record along with the letters from Mumbai Customs indicating the finalization of such Bills of Entry.

From the records, it is seen that in addition to the certificate issued by M/s EIL, M/s IPCL has also certified the completion and commissioning of the project.

2.2 As regards Bills of Entry filed before Mumbai Custom House, no communication has been done by the Kandla Custom House by allowing export in its letter dated 18.8.1999. First Order-in-Original was rejected by the Hon'ble Bombay High Court by ex parte order.

2.3 As regards Bill of Entry No. F-12073 dated 27.5.1999, it was observed that the goods have been assessed on merit and the importer have filed Bill of Entry in Gr. IV and the goods have been classified under Chapter 73.09.29 charging the duty.

2.4 As regards the Bill of Entry No. F-12073 dated 27.5.1999 filed in Mumbai Custom House at the relevant time, as per Ministry of Chemical & Fertilizers direction, the goods should have been assessed under the subsequent Chapter 98.01 for the specific goods under the Project Import Scheme was wanting at the relevant time, the appellant in being pressure to complete the project in time, deposited the duty and cleared the goods. Subsequently, the appellants were received the sanction and requirement etc., preferred the claim of refund for the excess duty paid. Further, the Assistant Commissioner observed in the ex parte order that the appellant should have filed the Bill of Entry under Chapter 98.01 of Project Import (Gr.VI), the refund claim cannot be entertained at this stage recording the finding.

3 Being aggrieved, the appellant preferred appeal before the Commissioner (Appeals), who vide the Order-in-Appeal No. 316/2003-MCH dated 22.8.2003 set aside the ex-parte order of refund and observed as follows: -

I have gone through the records of the case and heard the appellants. The main contention of the appellant is that though the goods were to be cleared under project import but because of some emergency the same were cleared without waiting for letter from the Ministry. The goods were meant for M/s IPCL which was a public sector undertaking. They have produced a copy of the letter from the Ministry of Industries dated 22.6.99 which states that the appellants are eligible for concessional rate under project import for the items which have already been imported. They have also produced a copy of the release advice dated 18.8.1999 issued from the Kandla Customs addressed to Assistant Commissioner of Customs, Mumbai requested to extend the benefit of project import.

The appellants have also alleged that there was violation of principles of natural justice as no show cause notice was issued nor any personal hearing was granted. It is evident from the impugned order that neither any show-cause notice not any personal hearing was granted. The impugned order is, therefore, in violation of principles of natural justice.

In view of above facts, it would be in the fitness of things that the matter is re-examined in light of the letter from the Ministry of Industries. I, therefore, set aside the impugned order. However, the appropriate authority is directed to re-examine the matter in the light of above dire3ctions and pass a speaking order on merits within 3 months from the receipt of this order after affording an opportunity to the appellants.

3.1 Subsequent to the setting aside by the Commissioner (Appeals) and remanding the issue back to the adjudicating authority. Vide order dated 6.5.2004, the adjudicating authority allowed the claim of the assessee for concessional duty and also allowed and sanctioned the refund claim of Rs.34,77,480/- to the appellant.

3.2 Further, the refund was also disbursed on 3.6.2004 as is evident from the refund voucher, a copy of which is also on record. Subsequently, the Commissioner of Customs (Import), Mumbai reviewed the Order-in-Original dated 6.5.2004 granting refund and it was observed that the adjudicating authority has re-opened the assessment which has attained finality. Further, as the appellant had not exercise the statutory right of appeal, accordingly, the assessment is finalized and the refund was wrongly sanctioned. Further, it was observed that the adjudicating authority has relied on the C.A. certificate and other records, recording that the order is cryptic and it was recommended that the impugned order dated 11.4.2005 of the Commissioner (Appeals) wherein the sanction of refund was set aside observing that the adjudicating authority not gone into details of the refund application.

4. The importer is in appeal on the ground that the order of the Commissioner (Appeals) is cryptic and non-speaking. Further, the Commissioner (Appeals) set aside the finding of the adjudicating authority only on assumption and presumption and uncalled for remarks that without recording any finding to the contrary as facts on record. Further, it is urged that the appellate order is to be set aside.

4.1 The appellant also wants to add that the issue of less charge memo dated 7.2.2005 under section 48 is also time barred as the refund was sanctioned and disbursed vide order dated 6.5.2004 and even if the date of reimbursement is taken the less charge memo has been issued after more than six months and the same is clearly time barred in terms of Circular dated 22.9.1999.

5. The learned AR appearing for the Revenue states that the Commissioner (Appeals) has rightly set aside the impugned order by observing that C.A. Certificate is not a conclusive document for sanctioning the refund and further reiterates the grounds of appeal. The learned AR also relies on the ruling of the Tribunal in the case of Commissioner of Central Excise, Nashik Vs. Crompton Greaves Ltd.  2011 (22) STR 380 (Tri-Mum).

6. Having considered the rival contentions and on examination of the records in the impugned order, I find that the learned Commissioner (Appeals) failed to exercise jurisdiction against same. The learned Commissioner (Appeals) has only raised the doubt which are in the nature of summarize and has not brought out any finding on record, on which setting aside of the orders sanctioning refund can be justified. Therefore, the impugned order of the Commissioner (Appeals) is set aside. Accordingly, the appeal of the assessee is allowed and appeal of the Revenue is dismissed. It is also held that less charge memo dated 7.2.2005 is clearly time barred.

(Dictated and pronounced in Court)

(Anil Choudhary) Member (Judicial)

Sinha

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