By TIOL News Service

MUMBAI, AUG 18, 2015: THE Commissioner of Customs has filed a Writ Petition praying that the orders passed by the CESTAT be set aside and the Appeal should be re-heard.

As per the High Court, the Revenue has made the following "somewhat unusual request". The circumstances leading to the same are -

+ SCNswere adjudicated and an O-in-O dated 11.3.2005 was passed by the Commissioner of Customs, CSI Airport, Mumbai confirming the re-determined value; confiscating the rough diamonds absolutely and imposing penalties.

+ The CESTAT by an order dated 16.06.2005 remanded the case back to the Adjudicating Authority on the ground that the minutes of valuation were not signed by all the members of the expert panel of the Gem and Jewellery Export Promotion Council and the importers were not allowed to cross examine the members of the expert panel before the case was decided.

+ In denovo adjudication, an order was passed on 30.12.2008 and which came to be challenged once again by the importers before the CESTAT.

+ There was difference of opinion - Whereas Member (Judicial) was of the opinion that the appeals of the Importers deserve to be allowed, the Member (Technical) passed a separate order upholding the Department's stand, but yet remanded the case to the Commissioner for ascertaining the value of the impugned goods by constituting a Panel in accordance with the departmental instructions and, thereafter, for conducting fresh hearing.This order is dated 06.08.2013.

+ The matter was, therefore, referred to the third member.

+ In the meanwhile, the importers filed Rectification of Mistake applications alleging mistake in the order of the Tribunal dated 6.8.2013.

+ Even when these applications for rectification were placed before the same Bench, the Members' differed. The applications were admitted by the Member (Judicial) whereas the Member (Technical) recorded a separate order rejecting the same. This order was passed on 8.12.2014.

+ This difference of opinion was also marked and referred to same third Member who was to resolve the disagreement in the initial order dated 6.8.2013.

+ When the third Member (T) was scheduled to hear the matter in March 2015, one of the applicants stated that they had approached the Supreme Court praying that the orders passed by the Tribunal be quashed and the appeal itself be heard afresh. Resultantly, the third Member adjourned the hearing to 30.04.2015.

+ On retirement of the Member (T) in the first week of April 2015 the Civil Appeal also came to be withdrawn and the matter was assigned to the Member (Judicial) as a third Member.

Be that as it may, the High Court observed that the request that had been made by the Assessees at one stage and opposed by the Revenue was now being acceded to by Revenue inasmuch as both sides have requested that to resolve the confusion and chaos, the appeals be re-heard.

Reliance is also placed on the decision in Sarto Electro Equipments Pvt. Ltd. Vs. Union of India - 2015-TIOL-644-HC-MUM-CX.

The High Court observed -

++ After hearing both sides and finding that this is one more instance where the Members of Bench have differed and recorded dissenting opinion, thereafter the matter was not pursued and decided in right earnest, that by consent of both sides, we set aside the initial order dated 6.8.2013 passed in the set of nine appeals and which is a common order. We restore each of these appeals to the file of the CESTAT for being decided afresh in accordance with law and after giving an opportunity of being heard in person to all the parties thereto. The Tribunal shall endeavour to dispose of the appeals expeditiously bearing in mind that they are pending for long time. In the light of the consent recorded for setting aside the initial CESTAT order dated 6th August 2013, all rectification applications and reference to a third member will not survive and they are disposed off.

++ The Tribunal should bear in mind the caution administered by this Court in the above decision and all such decisions rendered prior thereto. We do not see why there should be a difference of opinion on factual matters. Further, if there is a broad agreement between the Members on what course should be adopted and as a final one, then, by some meaningful discussion, continuous dialogue and by not demonstrating unnecessary haste, disagreements and dissents can be avoided. We hope and trust that hereafter we will not be required to pass similar orders. Instead of taking up the matters on merits, our time will not be wasted in ensuring that the Tribunal resolves the cases in accordance with law.

The Writ Petition was disposed of.

(See 2015-TIOL-1872-HC-MUM-CUS)