MARCH 26, 2024

By S K Rahman, IRS, working as AR at Delhi CESTAT

THE Principal Bench of CESTAT has passed Final Order. No 1-30/2024 dt.21-03- 2024 in the case of Century Metal Recycling Private Limited Final Order. No 31-62/2024 dt.21-03-2024 = 2024-TIOL-311-CESTAT-DEL in the case of CMR Nikkei India Private Limited and Sanjivani Non-Ferrous Trading Private Limited.

In these cases Aluminium scrap was imported ; self assessed Bills of entry were filed ; value was found to be low and the Officers have enhanced the value. The importer agreed for enhancement of value and gave consent letter in writing and the goods have been cleared. Out After taking the Out of Charge, the importer treating the assessed BE as Assessment Order, filed appeals with Commissioner (Appeals). The Commissioner (Appeals) has passed OIA ordering the declared value may be accepted. The Department reviewed the OIA and filed appeals against the O-i-A in CESTAT Delhi. As per Explanation (1) to Rule 6A of CESTAT (Procedure) Rules, 1982, one appeal has to filed for each OIO. In the instant case assessment done on each bill of entry is being treated as one speaking order. Thus the Department filed multiple appeals bill of entry wise as per the Rule 6A of CESTAT (Procedure) Rules, 1982

When the appeals came up for hearing on 15-12-23, before even the Revenue started making submissions, the learned counsel of the Respondent has raised objections that the each of the 30 appeals pertaining to Century Metal Recycling Pvt Ltd ; 31 appeals pertaining Century Nikkei Pvt Ltd and one appeal pertaining to Sanjivini Non Ferrous Trading Pvt Ltd Total 62 appeals are below the threshold limit for filling appeals as per CBIC Instruction F-390/Misc/163/2010-JC dtd.17-08-2011 further updated by 17-12-2015 and 30-12-2016. The Departmental Authorised Representative has argued that there was no opportunity for the Department to give speaking order as per Section 17 (5) of Customs Act, 1962 as the Importer has accepted enhancement and took out of charge of goods The Commissioner (Appeals ) should have remanded the case back under Section 128A (3)(b)(ii), of the Customs Act, 1962.

The Hon'ble CESTAT held the CBIC Instruction prescribing monetary limit for filing appeals before this Tribunal is not mandatory in view of the facts and circumstances of the present case (where Revenue could not pass Order), and Departmental Appeals shall be heard on merits.

Thus a very rare case where Ho'ble CESTAT exercised its power to not accept the CBIC instructions in this particular appeal and passed order in favour of Revenue.

The take aways from these two Orders are

1. When appeals are being filed Bill of Entry wise treating the assessed Bill of Entry as an Assessment Order, then Department should get opportunity to pass a speaking Order.

2. Situations where the Principles of Natural Justice are violated against the Department can be show cased and get Justice from the Court

3. The advice for Commissioner ( Appeals) is that they may remand the cases back under Sec 128A(3)(ii) where there is no speaking order passed

4. Wherever Circulars/Instructions are relied upon by the Parties, we can quote this case law, to show that they are not binding upon the Tribunals/Courts

The implication of these two Orders is that there are 500 more Dept appeals pending on the same issue of other importers apart from the 62 appeals addressed to in this case. All those Dept appeals also would stand now

(The views expressed are personal and not in official capacity)