Jsw Steel Limited vs Commissioner Of Customs, Goa

(Arising out of Order-in-Original No.Commr/Adj./Cus/02/201-15 dated 29.01.2014 passed by the Commissioner of Customs, Central Excise & Service Tax, Goa.)

For approval and signature: Honble Mr. P.S.Pruthi, Member (Technical)

Honble Mr. Ramesh Nair, 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 : No 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?

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JSW Steel Limited : Appellant

VS

Commissioner of Customs, Goa. : Respondent

Appearance

Shri Vipin Kumar Jain, Advocate with Ms. Manya Bhardwaj, Advocate for Appellant

Shri M.K. Sarangi, Joint Commissioner (A.R) for respondent

CORAM:

Mr. P.S.Pruthi, Member (Technical) Mr. Ramesh Nair, Member (Judicial)

Date of hearing : 07/08/2015 Date of decision : 07/08/2015

ORDER NO.

Per : P.S. Pruthi

This appeal is directed against the Order-in-Original dated 29/01/2014 passed by Commissioner of Customs and Central Excise, Goa. The appellant is importer of soft Coking coal. The dispute arose regarding the eligibility in terms of Notification No.21/2002-Cus dated 01/03/2002, which provided Nil rate of duty to Coking coal with Ash Content less than 12%. Fourteen Bills of Entry were apparently assessed provisionally and Bonds were executed by the appellant. The goods were got tested by the department from the Customs Laboratory at Goa, as well as Central Revenue Chemical Laboratory in New Delhi. It appears that the Assistant Commissioner issued less charge demand notices dated 18/08/2005 and 01/09/2005 followed by corrigendum dated 01/09/2005 on the appellants demanding duty on the basis of the reports of analysis. Before the demands could be taken up for adjudication the issue involved was referred to the Commissioner. The Commissioner on his own, vide the impugned order gave the following directions: I, direct the Deputy Commissioner of Customs (Appraising) who is the proper officer for finalizing the provisional assessments in respect to the Fourteen (14) Bills of Entry covered under the Less Charge Demands dated 18.08.05 and 01.09.05 to finalize the assessments in the light of less charge demands. We find the caption of this adjudication order reads as follows  Sub: Adjudication of Less Charge Demands dated 18.08.2005 and 01.09.05 and Corrigendum dated 01.09.2005 issued to M/s. Jindal Vijayanagar Steel Ltd. Mumbai in the case of import of Semi Soft Coking Coal at Marmagoa Port-reg..

2. The contention of the Ld. Counsel is that the Commissioner while passing the order has not considered their submissions relating to the method of drawal of samples, procedure for testing of samples. The delay in re-testing of the samples has caused prejudice to them.

3. Ld. AR appearing on behalf of Revenue raises an objection that this appeal is not maintainable because the appellant cannot be aggrieved by the order of the Commissioner which simply directs the Commissioner to finalize the provisional assessment in respect of the 14 Bills of Entry covered by the less charge demand.

4. Heard both sides and considered the submissions.

5. We have no doubt that the demand Notice under Section 28 was not required to be issued when the assessments were provisional. To this extent, we agree with the order of the Commissioner. However we do notice that certain pleas made by the appellant before the Commissioner have not been considered appropriately by him. And at the same time he has given directions to the Deputy Commissioner/Assistant Commissioner to finalize the provisional assessments.

6. In the circumstances, we find it appropriate to remand the matter to the Deputy Commissioner/Assistant Commissioner who is the authority for finalizing the provisional assessments with the following directions:

a) The demand notices dt. 18.8.2005 and 1.9.2005 should be withdrawn.

b) The details of provisional assessments and the Bonds executed must be seen by the Deputy Commissioner/Assistant Commissioner in terms of the law laid down under Section 18 of the Customs Act for finalization of the provisional assessments.

c) The appellant must be given a chance to put forth his views regarding method of drawing of samples as well as testing of samples before arriving at any conclusion.

d) The Deputy Commissioner/Assistant Commissioner must allow cross-examination if any such request is made by the appellant, in accordance with principles of natural justice.

e) The Deputy Commissioner/ Assistant Commissioner must take into account various judicial pronouncements including the decision of the Supreme Court in Tata Chemicals Ltd. Vs. Commissioner of Cus. (Preventive), Jamnagar 2015 (320) E.L.T. 45 (S.C.).

7. The matter pertains to the year 2005. Therefore the adjudicating authority is directed to pass the order within six months of the date of this order. While following the directions given above by us above, it is categorically stated that while passing his order the Deputy Commissioner/Assistant Commissioner must act as an independent quasi judicial authority without being influenced by the observations of the Commissioner in the impugned order.

7. The appeal is allowed by way of remand in above terms.

(Pronounced in court )

(Ramesh Nair) Member (Judicial)

(P.S.Pruthi) Member (Technical)

SM.

5 Appeal No. C/87442/2014