Commissioner Of Customs (Prev.), ... vs M/S Jsw Ispat Steel Ltd

(Arising out of Order-in-Original No. MUM-CUSTM-PRV-APP-244-14-15 dated 7.7.2014 passed by the Commissioner of Customs (Appeals), Mumbai-II).

For approval and signature:

Honble Shri Anil Choudhary, Member (Judicial) Honble Shri P.S. Pruthi, Member (Technical)

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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 JSW Ispat Steel Ltd. Respondent

Appearance: Shri M.S. Reddy, Dy. Commissioner (AR) for Appellant

Shri Nikhil Rungta, Advocate for Respondent

CORAM: SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) SHRI P.S. PRUTHI, MEMBER (TECHNICAL)

Date of Hearing: 06.02.2015

Date of Decision: 06.02.2015

ORDER NO.

Per: Anil Choudhary

The Revenue is in appeal against order of the Commissioner (Appeals), wherein the Commissioner (Appeals) observing that Order-in-Original in question is an ex-parte order, where no show-cause notice was issued to the assessee and further the same also defeats CBE&C-Customs Manual of Instruction, which provides that any discrepancy found in the refund application or documents filed by the party has to be communicated to the concerned party within 10 working days of initial receipt of refund claim. In the facts and circumstances, an appeal was preferred against the Order-in-Original before the Commissioner (Appeals) by the assessee. The Commissioner (Appeals) annulled the Order-in-Original and directed the original adjudicating authority to pass a fresh order after providing reasonable opportunity to the assessee.

2. The grounds taken by the Revenue are that the impugned order of the Commissioner (Appeals) is against the spirit of law explained by the Hon'ble Supreme Court in the case of MIL India Ltd. Vs. CC  2007 (210) ELT 188 (SC), wherein the Hon'ble Supreme Court examined the effect of amendment in Section 35A and 35B, has observed that the Commissioner (Appeals) continues to exercise the powers of the adjudicating authority in the matter of assessment. Under Section 35B, any person aggrieved by the order of the Commissioner, as an adjudicating authority, is entitled to move the Tribunal in appeal. Section 35B indicates that the decision or order passed by the Commissioner (Appeals) was to be treated as an order of the adjudicating authority. In these circumstances, the Hon'ble High Court had erred in holding that the assessee was not entitled to agitate any question in dispute before the Tribunal. Further, the Revenue relied upon the ruling of the Punjab & Haryana in the case of CC, Amritsar vs. Emkay (India) Rubber Co. Pvt. Ltd.  2008 (224) ELT 393 (P&H), wherein the Hon'ble High Court has held that by virtue of the 2001 amendment, the Commissioner (Appeals) have been divested of the powers to remand the case back to the adjudicating authority, after deletion of that power from Section 35A(3) of the Central Excise Act. Accordingly, prays for setting aside the impugned order.

3. The learned Counsel for the respondent assessee points out that the customs duty was paid on provisional basis under the scheme of Section 18 and the same was finalized under Section 18(2) of the Customs Act, and accordingly, an amount of Rs.4.67 crore (approx.) was found to be refundable to the assessee. But the adjudicating authority without issuing show-cause notice or deficiency memo, although accepted the claim on merits, vide ex-parte order, have transferred the amount of refund to the Consumer Welfare Fund under Section 27(2) of the Customs Act observing that the appellant have failed to establish the claim of unjust enrichment. Further, the assessee relies on the ruling of the Hon'ble Gujarat High Court in the case of Commissioner of Central Excise Vs. Medico Lab  2004 (173) ELT 117 (Guj), wherein the Hon'ble High Court referring to the ruling of the Hon'ble Supreme Court in the case of UOI Vs. Umesh Dhaimode  1998 (98) ELT 584 (SC) have held that Commissioner (Appeals) continues to have the power to remand after observing the provisions of Section 35A(3) and have observed as follows:-

14.?We must also state that even after amendment, which has come into force with effect from 11-5-2001, powers of remand by allowing the appeal of the Commissioner (Appeals) have not been taken away specifically. In that view of the matter, we are of the considered opinion that the appellate authority viz. Commissioner (Appeals) was vested with the power while deciding the appeal as he deemed fit by confirming, modifying or annulling the decision or order appealed against him. In our considered opinion, order of remand necessarily annuls the decision, which is under appeal before the appellate authority. Therefore, we entirely agree with the view taken by the learned Single Member of the Tribunal that even after amendment of Section 35A or the Central Excise Act, the appellate authority has the power to set aside the decision, which is under appeal before it and it has power to remand the matter to the authority below for its fresh consideration.

15.?In view of the above discussion, both these appeals fail and are hereby, dismissed.

3.1 It is further pointed out by the learned Counsel for the assessee that Section 128A deals with the power of Commissioner (Appeals), is now similar to the adjudicating authority who may refer the case back to the adjudicating authority with such directions as he may deem fit, for fresh adjudicating or decision, which were substantially valid after the 2001 amendment. The issue is now settled by the decision of Hon'ble Supreme Court in the case of Umesh Dhaimode (supra) order dated 13.2.1997. The Hon'ble Supreme Court has held as follows in favour of the assessee: -

2. As the order under appeal itself notes, the? aforesaid provision vested the appellate authority with powers to pass such order as it deemed fit confirming, modifying or annulling the decision appealed against. An order of remand necessarily annuls the decision which is under appeal before the appellate authority. The appellate authority is also invested with the power to pass such order as it deems fit. Both these portions of the aforesaid provision, read together, necessarily imply that the appellate authority has the power to set aside the decision which is under appeal before it and to remand the matter to the authority below for fresh decision.

Accordingly, the respondent-assessee prays for dismissing the appeal of the Revenue, with a direction to adjudicating authority, to sanction the refund claim.

4. Having considered the rival contentions, we agree with the law laid down by the Hon'ble Supreme Court in the case of Umesh Dhaimode (supra) and also the law appreciated by the Hon'ble Gujarat High Court in the case of Medico Labs. (supra) and accordingly, we dismiss the Revenues appeal. We further direct the concerned adjudicating authority to provide an opportunity of hearing to the assessee on the point of unjust enrichment and pass a reasoned order in accordance with law. We further direct the respondent assessee to appear before the adjudicating authority within a period of 8 weeks from the receipt of a copy of this order and seek an opportunity of hearing.

(Dictated and pronounced in Court)

(P.S. Pruthi) (Anil Choudhary) Member (Technical) Member (Judicial)

Sinha

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