Commissioner Of Customs (Prev.), ... vs M/S Gandhar Coal And Mines

(Arising out of Order-in-Appeal No. MUM-CUSTM-PRV-APP-245/14-15 dated 7.7.2014 passed by the Commissioner of Customs (Appeals), Mumbai-III).

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 (Prev.), Mumbai Appellant

Vs.

M/s Gandhar Coal and Mines Respondent

Appearance: Shri S.J. Sahu, AC (AR) for Appellant

Shri Mihir Mehta, Advocate for Respondent

CORAM: SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL)

Date of Hearing: 03.06.2015

Date of Decision: 03.06.2015

ORDER NO.

Per: Shri Anil Choudhary

This appeal is filed by the Revenue against Order-in-Appeal No. MUM-CUSTM-PRV-APP-245/14-15 dated 7.7.2014 passed by the Commissioner of Customs (Appeals), Mumbai-III.

2. The respondent, M/s Gandhar Coal & Mines, is an importer of coal as well as trader. The respondent assessee filed refund claim vide the letter dated 23.1.2012. The claim of refund was filed for security deposited, paid by the assessee against Bill of Entry, which was provisionally assessed under Section 18 and finalized under Section 18(2) of the Customs Act. The security deposit paid against provisional duty Bond, executed by the respondent as per direction by the Revenue authority. On scrutiny of the refund claim, the Assistant Commissioner noticed that the assessee had not submitted any documents along with the said refund claim, to corroborate that the amount claimed as refund has not been passed on to their customers, documents namely, certificate from the Chartered Accountant certifying that the incidence of security deposit has been borne by the assessee and not passed on to any other person and sample copy of the said invoices. The adjudicating authority sanctioned the refund claim and further ordered it to be credited to the Consumer Welfare Fund. In the Order-in-Original, it is recorded that the assessee submitted the documents namely, copy of profit and loss account and Balance-sheet as on 31.3.2011, the extract of Ledger account and also submitted documents namely TR-6 challan and triplicate copy of Bill of Entry. It is further observed from para 19 of the Order-in-Original, that on the scrutiny of the Balance-sheet it is evident that the security deposit made, was reflected as deposit with Customs on right side (assets) of balance sheet. It is further observed that Ledger extract also indicated the amount of security deposit as the closing balance as debit side. The noticee has produced a copy of C.A. certificate and sample invoice on 16.4.2012. In Order-in-Original it is seen that satisfaction of service of notice effected, has not been recorded nor copy of notice sent by any other mode provided in the Act or Rules.

2.1 Being aggrieved by non-grant of refund and credit of the amount in the Consumer Welfare Fund, the respondent preferred appeal before the Commissioner (Appeals), who vide the impugned order taking notice of the facts have held as follows: -

4. I find that as per CBEC Customs Manual of Instructions issued on 2.2.2012, any deficiency found in the refund application or documents filed by the party have to be communicated to the concerned party within 10 working days of initial receipt of refund claim, whereas in this case only reference of written communication of deficiencies is vide fax dated 16.4.12 almost 83 days after filing of refund claim. Thereafter, the adjudicating authority proceeded to decide the case on 20.4.2012 without even ensuring the communication of deficiency memo to the appellants, without waiting for a reasonable time to allow the appellants to submit documents after receipt of the memo and without allowing any opportunity of a personal hearing. Thus, the adjudicating authority has failed to adhere to the principle of natural justice.

2.2 The learned Commissioner (Appeals) was pleased to set aside the Order-in-Original and directed the adjudicating authority to pass a fresh order after providing reasonable opportunity to the respondent to produce the C.A. certificate and sample invoice.

2.3 Being aggrieved, the Revenue is in appeal on the ground that the Commissioner (Appeals) has no power to remand the matter.

3. Having considered the rival contentions, I am satisfied that there is a gross violation of principles of natural justice and also the provisions of Act and Rules as there is no proper service of notice on the assessee before passing of the ex parte Order-in-Original. In this view of the matter, I set aside the impugned order Order-in-Appeal and Order-in-Original and remand the matter back to the adjudicating authority , with directions to go through the C.A. certificate, which is now being produced by the assessee and thereafter passing the fresh order in accordance with law. I also direct the appellant to appear before the adjudicating authority with a copy of documents within a period of eight weeks from receipt of copy of this order and seek opportunity of hearing. The adjudicating authority is also directed to complete the adjudication proceedings within a period of four weeks, on receiving a copy of this order. Thus, the appeal is allowed by way of remand.

(Dictated and pronounced in Court)

(Anil Choudhary) Member (Judicial)

Sinha

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