By TIOL News Service

MUMBAI, JAN 24, 2014: IN this Customs case, the appellant was directed by the lower appellate authority to approach the adjudicating authority,who was required to pass a speaking order as per Section 17(5) [Assessment of duty]of the Customs Act, 1962.

The grievance of the appellant is that in spite of the said direction, the adjudicating authority has not passed the speaking order and hence, they are before the CESTAT with an early hearing application and an appeal.

The Bench observed -

"3. We have gone through the file and observed that there is no fault in lower appellate authority directing the adjudicating authority to pass a speaking order with regard to denial of benefit of exemption claimed by the appellant in Bill of Entry. If the adjudicating authority has not followed this direction, the remedy lies in taking up the matter with the jurisdictional Executive Commissioner. This Tribunal being an appellate authority does not have any authority to control the functioning of the Customs Officer in a particular Commissionerate."

Holding that the appeal is not maintainable, the same was dismissed.

In passing: If only, but also - Perhaps, had it been an order of the Bench that the adjudicating authority was sitting on, Procedure rules 40 & 41 would have been applied with full force!

(See 2014-TIOL-122-CESTAT-MUM)