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Cus - Commissioner (A) while remanding appeal has no power to put a pre-condition to decide case in de novo - Remand order of Commissioner (A) directing appellant to pay EDD at 5% set aside: CESTAT

By TIOL News Service

CHENNAI, MAR 07, 2016: THE appeal is filed against the order of the Commissioner of Customs (Appeals) wherein he has set aside the OIO passed by the Dy. Commissioner of Customs (SVB), Chennai and remanded the matter to DC (SVB) to revisit the issue afresh to pass necessary orders in de novo on determination of value on the imports made from related overseas firm. While remanding the case, the Commissioner (Appeals) has also directed the appellant to pay EDD at the equivalent of 5% of the invoice value and also directed the DC (SVB) to assess the bills of entry provisionally till the issue of fresh orders. Therefore, the appellant's appeal is limited only to the impugned order relating to 5% of EDD.

The appellant submitted that they have preferred appeal against the OIO and when the order is set aside and remanded denovo the Commissioner (Appeals) has no jurisdiction to direct the appellant to pay 5% EDD of the invoice value till the issue of denovo order. Under Section 128 A of the Act, the Commissioner (Appeals) has power to modify/annul/ remand with directions if any. The directions can be limited to only on the proceedings and cannot order 5% EDD when the order was set aside and remanded to the adjudicating authority.

After hearing both sides, the Tribunal held:

++ The lower appellate authority in the impugned order set aside the OIO passed by the DC (SVB) and remanded the matter to the adjudicating authority to pass fresh orders for examining the case afresh on merits. The Commissioner (Appeals) has also directed the appellant to pay EDD at the equivalent of 5% of the invoice value till the issue of fresh orders ad also directed the DC (SVB) to assess the bills of entry provisionally till the issue of fresh orders. The limited issue in this appeal is whether the Commissioner (Appeals) while remanding the appeal has power to direct the lower authority to put pre-condition to decide the case in denovo. In this regard, the Hon'ble High Court Order in the case of Terumo Penpol Ltd. and in the case of National Oxygen Ltd., on identical issue set aside the portion of the Commissioner (Appeals) order directing 5% EDD.

++ By respectfully following the Hon'ble High Court's Orders above, that portion of the Commissioner (Appeals) order imposing 5% EDD is set aside. The appeal is allowed.

(See 2016-TIOL-547-CESTAT-MAD)


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