MAY 06, 2024

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

(Final article of the series of 3 articles)

1. WHENEVER any appeal is filed under Section 129A of Customs Act, 1962 to the Appellate Tribunal (CESTAT), the requisite checks that are required to be done, apart from many others are :

a) Pre deposit under Section 129E of Customs Act, 1962

b) Court fee under section 129A(6) of Customs Act, 1962

c) The Respondent

2. On all the three above aspects, the Hon'ble CESTAT has recently come out with Orders which are of great significance. Last two weeks, the aspects of Pre Deposit and Court Fee were discussed. This week, let us discuss about the aspect of who should be Respondent.

3. As per Rule 12(1) of Customs, Excise and Service Tax Appellate Tribunal] (Procedure) Rules, 1982, "In an appeal or an application by a person other than the [Principal Commissioner or Commissioner] or the Administrator, the [Principal Commissioner or Commissioner] concerned or the Administrator shall be made the respondent to the appeal or, as the case may be, the application. In case the adjudicating authority is Commissioner, for any party's appeal against the O-i-O of the Commissioner in CESTAT, the Respondent is the concerned Commissioner. In case the adjudicating authority is sub ordinate to Commissioner, the party would file appeal with Commissioner (Appeals) and if the party is aggrieved of the O-i-A, then appeal is filed with CESTAT with Respondent as the concerned Commissioner but not the adjudicating authority is sub ordinate to Commissioner (eg Asst./Dy./Joint/Additional Commissioner). Similarly Respondent is not the Commissioner (Appeal), even though the appeal in CESTAT is against the impugned order being O-i-A passed by the Commissioner (Appeal).

4. For the cases investigated by DRI, involving more than one port, the adjudication is done by Commissioner (Adjudication) as it involves more than one Port. The Commissioner (Adjudication) as on date is at Mumbai and Delhi. If party is aggrieved of the O-i-O of the Commissioner (Adjudication), then they would file appeal in CESTAT Delhi, if O-i-O is by Commissioner (Adjudication) Delhi and in CESTAT Mumbai, if O-i-O is by Commissioner (Adjudication) Mumbai.

5. In one such set of cases, there are appeals MMTC Limited Vs Commissioner of Customs Adjudication, New Delhi with Customs Appeal No.55290 of 2023, Diamond India Limited Vs Commissioner of Customs Adjudication, New Delhi with Customs Appeal No.55054 of 2023 and HDFC Bank Limited Vs Commissioner Of Customs Adjudication, New Delhi with Customs Appeal No.54918 of 2023 are pending in CESTAT against impugned Order-in-Original No. 09/Manish Saxena/Commr (Adj.)/Delhi/NCH/2022-23 dated 18.1.2023 passed by the Commissioner of Customs (Adjudication), New Delhi. The case involved imports done at various ACCs at Hyderabad, Mumbai, Kolkata and Ahmedabad.

6. In this case, as the imports covered under investigation/SCN/OIO pertain to various Commissionerates, the Commissionerate with highest Revenue i.e. Hyderabad Customs Commissionerate has filed Miscellaneaous Application for impleading it as Respondent No 2. The Department has requested for impleading the jurisdictional Commissioner as another Respondent alongwith Commissioner (Adjudication). Request was not objected by learned Counsel for the appellant but it was mentioned that Rule 12 of CESTAT (Procedure) Rules, 1982 do not permit such impleadment

7. The Authorised Representative has submitted that :

7.1 The Commissioner (Adjudication) has been nominated vide Notification No. 29/2022-Cus(NT) dated 31.03.2022 for adjudication of the cases in case of multiple jurisdiction. Thus he has been assigned the task only to adjudicate.

7.2 The appeals are filed by jurisdictional Commissioners. As per vide Notification No. 26/2022-Cus(NT) dated 31.03.2022 the proper officers to file appeal under Section 129A has been given as Asst./Deputy Commissioner of Custom.

7.3 The CBIC has issued Instruction dated 26.10.2016 from F.No. 390/Review/08/2016-JC wherein it is stated that for the cases pertaining to more than one Commissionerate, the Commissionerate where highest revenue involved shall take up the case for filing appeal. Even though these instructions are w.r.t. Departmental appeals the same are applicable for party appeals also.

8. The Hon'ble CESTAT has passed Miscellaneous Order No. 50143-50145/2024 dt 01-03-2024 - 2024-TIOL-433-CESTAT-DEL in which it held that as per Rule 12 of CESTAT (Procedure) Rules, 1982iIn an appeal by a person, the Principal Commissioner or Commissioner concerned shall be made the respondent to the appeal.The Hon'ble CESTAT held that the Commissionerate issuing the show cause notice from which originated the present 'lis', is the concerned Commissionerate and the Principal Commissioner or Commissioner, as the case may be, is the concerned respondent in the appeal filed by the assessee. The Hon'ble CESTAT has permitted the impleadment of Principal Commissioner or the Commissioner of jurisdictional Commissionerate (which issued show cause notice) as another respondent alongwith Principal Commissioner or the Commissioner (Adjudication).

9. Thus the Commissionerate of highest revenue in this case, may file Miscellaneous Application making them as Respondent No 2, along with Commissioner Adjudication. This is required because in case final order of CESTAT comes against the interest of Revenue, then in case if any appeal is to be filed, the Commissionerate of highest revenue being Respondent no. 2 would be able to file further appeal or take appropriate legal remedy. The Commissioner (adjudication) like Commissioner (Appeals) is adjudicating authority only and they can not file further appeal against the final CESTAT Order.

10. In fact on this aspect of party appeals where the Addional Director General (Adjudication) previously and now Commissioner (Adjudication) is the respondent, the jurisdictional Commissioners may handle the Party Appeals to give para wise comments on Grounds of Appeal, and also supply copies of RUDs, relevant information etc to its Authorised Representatives at CESTAT for submitting effective arguments to Hon'ble CESTAT.

11. In case the O-i-O of Commissioner (Adjudication) is reviewed by Committee of Chief Commissioners, they direct the Commissionerate where highest revenue involved to take up the case for filing appeal against the OiO of Commissioner (Adjudication). Keeping the same intent, particularly after issue of this Miscellaneous Order No. 50143-50145/2024 dt 01-03-2024 - 2024-TIOL-433-CESTAT-DEL the parties who file appal against the OiO of Commissioner (Adjudication) may like to make Commissioner (Adjudication) as Respondent No 1 and the Commissionerate where highest revenue involved as Respondent No 2.

12. Against, this argument, some may quote Misc Order no. Misc. Order No. 50300/2019 dated 11.04.2019 - 2019-TIOL-3987-CESTAT-DEL in the case law of Riya Travels & Tours (India) Pvt. Ltd. Vs ADG (Adjudication), New Delhi in Service Tax Appeal No. 52774 of 2018 - DB where in it is held that it is not necessary that either one or all the 27 jurisdictional Commissioners, should be impleaded as respondent in the appeals. In this regard it is felt that this Order dt 11-04-2019 was prior to issue of Notification No. 26/2022-Cus(NT) dated 31.03.2022 where in the proper officers to file appeal under Section 129A has been given as Asst./Deputy Commissioner of Custom and also Notification No. 29/2022-Cus(NT) dated 31.03.2022 where in Commissioner (adjudication) has been assigned the task of adjudication of the cases in case of multiple jurisdiction. This is after issue of Canon India judgement by Hon'ble Supreme Court

13. Infact in previous case also vide Miscellaneous Order No. 50243/2023 dt. 09/08/2023 - 2024-TIOL-434-CESTAT-DEL in the case of Monit Trading Private Limited vs Commissioner of Customs (Adjudication) New Delhi in Customs Appeal No. 50049 of 2023, the Hon'ble CESTAT has issued favourable order where in the Commissioner of Customs House, Mundra was allowed to be impleaded as Respondent No. 2 in the appeal

14. Thus the take away from this CESTAT Miscellaneous Order No. 50143-50145/2024 dt 01-03-2024- 2024-TIOL-433-CESTAT-DEL is that in the cases where Investigation has been done by DRI, adjudication by Commissioner Adjudication as common adjudicating authority, the parties file appeal making the Commissioner Adjudication as Respondent. As per CBIC notification 60/2015-Cus(N.T.) dated 04.06.2015, the Commissioner of Customs (Adjudication) is the proper officer only for the purpose of adjudication of cases investigated by DGRI. Hence the Commissionerate of highest revenue in each case, may file Miscellaneous Application making them as Respondent No 2, along with Commissioner (Adjudication).

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