Commissioners Of Central Excise vs M/S Alcock Ashdown (Guj) Ltd

[ Arising out of OIA-64-66/2008-BVR-/KCG/COMMR-A-/AHD dtd 14.9.2008 Passed by Commissioners of Central Excise, Customs and Service Tax (Appeal) BHAVNAGAR ]

Commissioners of Central Excise, Customs and Service Tax-BHAVNAGAR - Appellant (s)

Vs

M/s Alcock Ashdown (Guj) Ltd - Respondent (s)

Represented by:

Appellant (s) : Ms Bharati Chauhan, Authorised Representative.

Shri J Nagori, Authorised Representative.

Respondent (s) : Shi Anand Mishra, Advocate.

For approval and signature :

Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M. Saleem, Honble Member (Technical)

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

No 3 Whether their Lordships wish to see the fair copy of the Order?

Seen 4 Whether Order is to be circulated to the Departmental authorities?

Yes

CORAM :

Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M. Saleem, Honble Member (Technical)

Date of Hearing / Decision : 6/10/2015 ORDER No. A/11561-11563 / 2015 dtd 6/10/2015

Per : Mr. P.K.Das;

These appeals are arising out of a common order and therefore, all are taken-up together for disposal.

2. After hearing both the sides and on perusal of the records, we find that the respondents were granted license for Private Bonded Warehousing under the provisions of Section 58 of the Customs Act 1962 for storage of goods without payment of duty on first importation, subject to conditions prescribed therein. They have also been allowed to manufacture of Ocean Going Vessels in the bonded warehousing. The respondent had stored the duty free goods in the warehouse, beyond the valid warehousing period. The Adjudicating authority confirmed the demand of duty alongwith interest and imposed penalty as per provisions of Section 72 read with Section 61 of the customs Act 1962. By the impugned order Commissioner (Appeals) set aside the Adjudication order.

3. Both the sides argued at length. The main contention of the Learned Authorised Representative for Revenue is that the Commissioner (Appeals) proceeded on the basis of erroneous facts and therefore, the law followed by the Commissioner (Appeal) is wrong. In this context, the learned Authorised Representative for the Revenue drew the attention of the Bench to the relevant portion of the impugned order. It was observed that the respondent applied for extension of warehousing period before the issuance of show cause notice, which was still pending before passing of the impugned order. The Learned Authorised Representative for the Revenue particularly drew the attention of the Bench, Para 1 of the grounds of appeal, as under:

 The Commissioner (Appeals) has observed that in the instant case, decision on request made by respondent for extension of warehousing period to the Chief Commissioner is still pending. However, it may not out of place to submit here that the decision has already been taken by the Chief commissioner of Central Excise, Ahmedabad Zone on the request made by the respondent for such extension of warehousing period. The rejection is issued by the Chief Commissioners Office vide their letter F.No.V30-18/CCO/Tech/2003(Pt-1) dated 8/5/2008 and the same have been communicated to the respondent vide letter F.No. BVR/PBW/08/2003-04 dated 26.5.2008 issued by the Superintendent of Central Excise, AR-1, Bhavnagar. The personal hearing in the case before the commissioner (Appeals) was held on 23/6/2008 which was attended by the employee of the respondent and their consultant. At the time of attending the hearing, the respondent was well aware that their applications which were addressed to the Chief commissioner, Central Excise, Ahmedabad Zone seeking extension in time limit of warehousing have been rejected. However, this was not brought to the knowledge of the Commissioner (Appeals) by the respondent just to get the decision in their favour.

4. The Learned Advocate on behalf of the respondent fairly submits that the facts as stated above is correct. He submits that despite of the above facts, the Commissioner (Appeals) followed the other decisions which are applicable in this case. On the other hand, the Learned Authorised Representative submits that other issues are also in favour of the Revenue.

5. We find that the Commissioner (Appeals) passed the order on erroneous facts and therefore, the findings of the Commissioner (Appeals) cannot be sustained. In our considered view, the Commissioner (Appeals) is required to ascertain the correct fact and thereafter decide the matter in accordance with law. It is apparent that the respondent had not given the correct fact and therefore, such order cannot be sustained. The other issues as raised by both the sides would be required to decide after considering the correct facts of the case.

6. In view of the above, we set aside the impugned order passed by the Commissioner (Appeals). The matter is remanded to the Commissioner (Appeals) to decide afresh, after considering the facts and the law of the case and pass order in accordance with law. Needless to say that, the Commissioner (Appeals) shall give proper opportunity of hearing, before passing the order. We make it clear that this order is passed without expressing any view on merit.

7. All the appeals are allowed by way of remand. The Miscellaneous applications are disposed of.

(Dictated and pronounced in the Court)

(P.M. Saleem) (P.K. Das) Member (Technical) Member (Judicial)

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