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Cus - Order of Commr.(A) is cryptic inasmuch as although it sets aside adjudication order, on Revenue appeal, Commr(A) did not express his views or give any direction as to what is to be done - Order is patently wrong: CESTAT

By TIOL News Service

MUMBAI, JUNE 20, 2016: THIS is an appeal filed in the year 2005.

The facts of the case is that the appellant had filed Bill of Entry in November 2002 for clearance of 42 sets of "Tesa Electronic Door Locks" and claimed the benefit of Notification no. 44/2002-Cus. During examination of the goods on second check basis it was found that goods imported were 20 pieces of "Tesa Guest Room Safes" and not as shown in BE. EPCG benefit was denied to the imported goods and the Bill of Entry has been assessed @30% + 16% + 4% by the adjudicating authority.

Revenue appealed against this order on the ground that it was a clear case of mis-declaration requiring further investigation more so since the value of the "Tesa Guest Room Safes" was to be ascertained.

The Commissioner (Appeals) allowed the Revenue appeal by setting aside the order of the original authority.

The appellant is before the CESTAT.

It is inter alia submitted that although the Commissioner (A) by setting aside the order of the original adjudicating authority allowed the appeal of the department but there is no outcome of the said order and for this reason the order is not sustainable. As regards the mis-declaration, it is submitted that as per the contract of the appellant with the supplier they ordered for "Tesa Electronic Door Locks" and it is a mistake on the part of the shipping agent who has interchanged the consignment due to oversight and which fact has been admitted by the representative of the shipping agency. Inasmuch as the mis-declaration cannot be attributed to the appellant and since the adjudicating authority has reassessed the bill of entry, the grounds taken by the department in review proceeding & the resulting o-in-a have no legs to stand.

The AR justified the order of the lower appellate authority.

The Bench, after considering the submissions, extracted the findings given by the adjudicating authority and observed -

"…The above findings of the original adjudicating authority is based on the facts that the appellant was nowhere concern with the wrong shipment and it is a mistake of the shipping agent for shipment of the wrong goods. Therefore the reassessment done by the adjudicating authority is absolutely in order and does not require any interference. On going through the impugned order, we find that the order is cryptic inasmuch as the Commissioner (Appeals), though set aside the adjudication order and allowed the appeal but did not express his views or given any direction what is to be done after setting aside the order, for this reason also we are of the view that the impugned order cannot sustain. Therefore, considering the findings of the adjudicating authority as well as the finding given by the Commissioner (Appeals), we are of the clear view that the impugned order is patently wrong, hence not sustainable…."

The impugned order was set aside and the appeal was allowed.

(See 2016-TIOL-1468-CESTAT-MUM)


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