By TIOL News Service

MUMBAI, JULY 11, 2017: IN the present case, the CESTAT had dismissed the appeal filed by the assessee vide its order dated 22.03.2017.

We had reported this order 2017-TIOL-2348-CESTAT-MUM thus -

Cus - Provisional assessment finalized by Assistant Commissioner and duty short paid was demanded - order challenged by Revenue on the ground that interest was not demanded - Commissioner(A) rejecting appeal - Assessee had filed cross objections challenging the quantification in the appeal filed by Revenue, however, no findings were rendered thereon by Commissioner(A) - Assessee in appeal before CESTAT - AR submitting that assessee should have no grievance as it was Revenue appeal that was dismissed. Held: Section 128 of the Customs Act, pertaining to appeals to Commissioner (Appeals), does not provide for filing of cross objection - Customs Appeal Rules, 1982 prescribes filing of cross objection only before the Tribunal - In these circumstances, if the appellants were aggrieved by the order of the Assistant Commissioner, they should have filed an appeal before the Commissioner (Appeals) - Appeal dismissed: CESTAT [para 5]

The assessee has filed an application for Rectification of mistake against this order .

The applicant argued that the observation in paragraph 5 of the order that " there is no provision in law for filing Cross objection before the Commissioner (Appeals) " is erroneous in view of sub-section 4 of Section 129D of the Customs Act which reads -

"129D - (4) Where in pursuance of an order under sub section (1) or sub-section (2), the adjudicating authority or any officer of customs authorised in this behalf by the [Principal Commissioner of Customs or Commissioner of Customs], makes an application to the Appellate Tribunal or the [Commissioner (Appeals)] within a period of [one month/ from the date of communication of the order under sub-section (1) or sub-section (2) to the adjudicating authority, such application shall be heard by the Appellate Tribunal or the [Commissioner (Appeals)], as the case may be, as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of sub-section (4) of section 129A shall so far as may be, apply to such application."

Furthermore, sub-section (4) of section 129A of the Customs Act, 1962 prescribed the manner in which the memo of cross objection could be filed by the party against whom the appeal has been preferred.

Inasmuch as the observation in the order dated 22.03.2017 that there is no provision for filing cross objection is misplaced, the applicant emphasised.

The Bench observed -

"5. I have considered the argument presented before me. I find that para 5 of the order dated 22.03.2017 proceeds on the basis that the appellants did not have facility to file cross objection before the Commissioner (Appeals) in the instant case. However, it is noticed that section 129D(4) read with Section 129A(4) clearly prescribes that in case of appeal filed under 129D(2), the assesses can file cross objection and the same have to be dealt with as if it was an appeal presented within the time. As a consequence it is apparent that an error has crept in the order, therefore, para 5 of the said decision needs to be removed from the order and replaced with the following:- "

"5. I have considered the rival submissions. The main contention of the appellants is that the grounds raised in the cross objection were not examined by the Commissioner (Appeals) and consequently no relief has been granted. I find that in terms of section 129D(4) read with Section 129A(4) in all cases where the order of authorities lower than Commissioner are reviewed under Section 129D(2), it is open to the aggrieved party to file cross objection and the same has to be dealt with as if it was an appeal presented within time. Since the Commissioner (Appeals) has failed to consider this ground, the impugned order is set aside and the matter is remanded to the Commissioner (Appeals) to decide afresh after considering the argument raised by the appellants in the cross objection."

The ROM application was allowed.

In passing : Also see 2011-TIOL-77-SC-CX.

(See 2017-TIOL-2367-CESTAT-MUM)