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Remand by Commissioner (A) with direction to pre-deposit duty - High Court holds such order is not maintainable as it would prejudice original authority and deletes that portion of order directing payment of 5% EDD

By TIOL News Service

CHENNAI, JUNE 11, 2015: DEPARTMENT filed appeal before the Commissioner of Customs (Appeals) and Appellate authority agreed with the case of the department and set aside the order in original. However, Appellate authority directed the Petitioner to pay EDD equivalent to 5% of the assessable value till the issue of the fresh order by the adjudicating authority.

Petitioner challenged the Order in the High Court. Petitioner contended that Commissioner of Customs (Appeals) has no authority to direct the petitioner to pay EDD equivalent to 5% of the Assessable value since the entire issue has to be revisited by the original authority afresh. When there is a direction to reconsider the issue by the original authority, giving direction to the petitioner to pay EDD equivalent to 5% of the assessable value would definitely bear some influence on the merits of the matter.

High Court held that though there is an effective alternative remedy available, the ultimate conclusion reached by the Appellate Authority directing the petitioner to pay EDD equivalent to 5% of the Assessable value till the issue of the fresh order, is not maintainable for the reason that when the matter is remanded back to the file of the Original authority, all the issues are to be adjudicated afresh, without being influenced by any of the observations. High Court further observed that direction given to pay EDD equivalent to 5% of the Assessable value, against the petitioner would prejudice the mind of the original authority while deciding the issue. Therefore, he High Court deleted that portion of the order directing the petitioner to pay EDD equivalent to 5% of the Assessable value and disposed off the Writ Petition by directing the adjudicating authority to determine the issue after giving reasonable opportunity to the petitioner.

(See 2015-TIOL-1423-HC-MAD-CUS)


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