M/S Indian Metal Traders vs Commissioner Of Customs-Ahmedabad

[ Arising out of OIA-763-769-2002-CUS-COMMR-AAHD dtd 24.6.2002 and OIA-868-873-2002-CUS-COMMR-AAHD dtd 27.6.2002 Passed by Commissioner of CUSTOMS-AHMEDABAD ]

M/s Indian Metal Traders M/s Hindustan Ship Breaking Yard - Appellant(s)

Vs

Commissioner of CUSTOMS-AHMEDABAD - Respondent (s)

Represented by :

For Assessee : Shri S P Sheth (Learned Advocate) For Revenue : Shri J Nagori (Authorised Representative)

For approval and signature :

Mr. P.K. Das, Hon'ble Member (Judicial) Mr. H.K. Thakur, 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. H.K. Thakur, Honble Member (Technical)

Date of Hearing / Decision : 12/3/2015

ORDER No. 10410-10422/2015 dtd 12/3/2015

Per : Mr.P.K. Das,

A common issue is involved in these appeals and therefore both are taken up together for disposal.

2. After hearing both the sides and on perusal of the records, we find that the appellants/importers had imported various Vessels/Ships for breaking and bills of entries were provisionally assessed. There was a dispute of classification of Ship Stores, Bunkers, Movable Gears on board. Adjudicating Authority confirmed the final assessment and ordered to pay differential duty. The appellant filed appeals before the Commissioner (Appeals). By the impugned orders, the Commissioner (Appeals) dismissed the appeals for non-compliance of the stay order under Section 129E of the Customs Act 1962.

3. The Learned Advocate appearing on behalf of the appellants submits that the Tribunal directed to pre-deposit amount partly against the impugned orders. The Honble Gujarat High Court set aside the stay order passed by the Tribunal by judgement dtd 24.9.2004 in the case of Indian Metal Traders, in Special Civil Application (SCA) No.4240 and 12390 to 12395 of 2004 and SCA No. 4223 and 12396 to 2400 of 2004. For the proper appreciation of the case, the relevant portion of the said decision of the Honble High Court is reproduced below:

 From the above it is clear that to other Bench of the same Appellate Tribunal at Mumbai had allowed, in all, 523 appeals filed by other different Appellants and the case were remanded to the Commissioner (Appeals) with a direction to decide the same on merits by waiving pre-deposit. But, the Bench of the Appellate Tribunal Camp at Vadodara, without being aware of the order passed by other Benches of the Appellate Tribunal on 21.10.2002 and 31.10.2002 passed totally different orders and directed the petitioners  Appellants to deposit certain amount. When the petitioners came to know about those orders passed by co-ordinate benches of the same Appellate Tribunal they immediately applied before the same Bench of the Appellate Tribunal by way of applications which were rejected by the same Bench of the Appellate Tribunal on the grounds mentioned in its order. In such type of situation there is no other option for this court but to allow the petitions and quash and set aside the impugned orders dated 13.11.2002 (Annexure:G in both petitions, as well as impugned order dated 4.12.2003 passed by the Appellate Tribunal in Modification Applications).

In view of the above discussion all these petitions are allowed and the impugned orders dated 13.11.2002 (Annexure:G in all the petitions) and the impugned common order dated 4.12.2003 passed by the Appellate Tribunal below Application No C/M/2228/2002-Mum are hereby quashed and set aside and all the matters are remanded to the Appellate Tribunal for deciding the matters afresh in light of the orders dated 21.10.2002 and 31.10.2002 passed by other Benches of the Appellate Tribunal at Mumbai.

4. We find that the Commissioner (Appeals) passed the order without going into the merits. Both the parties agreed that the matters should be remanded to the Commissioner (Appeals). Accordingly, we set aide the impugned order and the matters are remanded to the Commissioner (Appeals) to decide the appeal on merit after hearing the appellants. All the issues are kept open. Both the appeals are allowed by way of remand.

(Dictated and pronounced in the Court)

(H.K. Thakur) (P.K. Das) Member (Technical) Member (Judicial)

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