M/S. Kailash Enterprises vs Commissioner Of Customs, Tuticorin

[Arising out of Order-in-Appeal No.44/2009, dated 23.03.2009 passed by the Commissioner of Customs & Central Excise (Appeals), Trichy]

M/s. KAILASH ENTERPRISES APPELLANT

Versus

COMMISSIONER OF CUSTOMS, TUTICORIN RESPONDENT

Appearance:

For the Appellant Shri B. Satish Sundar, Adv.

For the Respondent Ms. Indira Sisupal, AC (AR)

CORAM:

Honble Shri D.N. Panda, Judicial Member

Date of hearing/decision 29-05-2015

FINAL ORDER NO. 40666 / 2015

The Commissioner (Appeals) has not applied his mind to examine plethora evidences available at pages 70-129 of the appeal folder of the Tribunal. He has totally failed in his duty drawing abrupt conclusion recording that certain documents were facsimile copy of invoices.

2. Learned counsel submits that it is necessity of law to examine whether the goods suffering additional Customs duty imported and goods traded were same suffering sales tax. But that was not done by the appellate authority. There is no even a whisper in his order as to pleading of the appellant that the goods sold paying sales tax were same as that was imported suffering additional Customs duty. It is also pleaded that the balance sheet of appellant exhibited the facts pleaded. Appellant does not hesitate to satisfy the Commissioner (Appeals) on evidence which have been brushed aside by him if direction in this behalf is given to him.

3. Appellants averments as above appear to be truthful and he has come out with clean hands to provide copies of documents, which he will not disown. The authority should have tested each and every document and compared the goods contained therein with the bill of entry and would have verified the same with sales tax if any suffered on sale.

4. It may be remembered that a public order should be passed publically by a public authority. When the authority fails to pass such public order in such manner that causes peril to justice, which the authority should prevent.

5. Without dilating the matter further, it is preferable that learned Commissioner (Appeals) should grant fair opportunity to the appellant to explain its case. Since, prima facie, it appears that the appellant by the aforesaid averment and evidence has discharged its burden of proof, the authority should examine thoroughly to satisfy the law as to the eligibility of refund of Additional Customs duty claimed by the appellant.

6. Since the matter above has travelled a lot, learned Commissioner (Appeals) should issue notice to the appellant within a month of receipt of this order or the applicant may make an application within one month of receipt of this order before Commissioner (Appeals) to hear the matter afresh and dispose the same by a reasoned and speaking order.

7. Appellant is directed not to seek adjournment without any reasonable cause. It is expected that the authority shall dispose the matter with utmost expedition to do justice to the aggrieved. (Dictated and pronounced in open court)

(D.N. PANDA) JUDICIAL MEMBER

ksr 01-06-2015

DRAFT Remarks

I II III

Date of dictation 29.05.2015

Draft Order - Date of typing 29.05.2015

Fair Order Typing 01.06.2015

Date of number and date of dispatch 22/06/2015

3 C/00162/2009