The matter was argued by Shri Anand Mishra, Advocate In CESTAT, Ahmedabad on 12.01.2015 .It is also reported in 2015(316) E.L.T 495 ( Tri-Ahmd) . The Honourable CESTAT laid down the following ratios :
There is no bar against pleading a law point at any stage.
Subsequent Additional Commissioner could not have modified the order of the earlier Additional Commissioner because the former is not a revisionary / appellate authority viz-a-viz the latter.
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL,West Zonal Bench, Ahmedabad
Appeal No. : C/315/2012
(Arising out of OIA -157/2012/CUS/Commr.(A)/KDL dated 03.09.2012, Passed by Commissioner of Customs (Appeals) Kandla)
M/s. Saji International : Appellant (s)
Vs.
Commissioner of Customs, Kandla : Respondent (s)
Represented by :
For Assessee : Shri Anand Mishra, Advocate
For Revenue : Shri Alok Srivastava, Authorised Representative
For approval and signature :
Mr. P.K. Das, Hon’ble Member (Judicial)
Mr. R.K. Singh, Hon’ble Member (Technical)
1
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2
Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether their Lordships wish to see the fair copy of the Order?
Seen
4
Whether Order is to be circulated to the Departmental authorities?
Yes
CORAM :
Mr. P.K. Das, Hon’ble Member (Judicial)
Mr. R.K. Singh, Hon’ble Member (Technical)
Date of Hearing / Decision : 12.01.2015
ORDER No. A/10040/2015 Dated 12.01.2015
Per : Mr. R.K. Singh;
The appellants filed this appeal against OIA No. 157/2012/CUS/ Commr.(A)/KDL dated 03.09.2012 which upheld the OIO No. KDL/ADC/Satyajit/1891/GR-2/2011 dated 28.9.2011, except to the extent that the amount of penalty was reduced from Rs. 2,50,000/- to Rs. 1,71,247/-. The appellants have contended that the Additional Commissioner had earlier passed an order (i) enhancing of the value from US$ 80 Per MT to US$ 124.04 Per MT (ii) confiscating the impugned goods (iii) imposing redemption fine of Rs. 5 Lakh and penalty of Rs. 2.50 Lakhs and allowed clearance thereafter, after cutting beed wire. The appellants contended that, as the Additional Commissioner who ordered as aforesaid got transferred before issuing a formal speaking order, the subsequent Additional Commissioner issued the said order-in-original which in addition to the order of the earlier Additional Commissioner, put the following additional conditionalities for release of the goods:-
(i) The goods will be redeemed only on import license issued by DGFT, and
(ii) After getting permission from the Ministry of Environment and Forest.
The appellants contention is that the subsequent Additional Commissioner could not have modified the order of the earlier Additional Commissioner as the former is not an appellate authority or a revisionary authority viz-a-viz the latter.
2. The learned AR, on the other hand contended that the order was issued after hearing the appellants when they had not taken this plea and thus supported the impugned order.
3. We have considered the contentions of both sides. At the very outset, it may be stated that there is no bar against pleading a law point at any stage. There is force in the appellants contention that subsequent Additional Commissioner could not have modified the order of the earlier Additional Commissioner because the former is not a revisionary / appellate authority viz-a-viz the latter. It is also a fact that if the transfer had not taken place the earlier Additional Commissioner would have issued a speaking order allowing the release of the goods on fine of Rs. 5.5 Lakhs and penalty of Rs. 2.5 Lakhs (subsequently reduced to Rs. 1,71,247/-) on enhance value after cutting the beed wire. It needs to be appreciated that the speaking order is more required by the appellants and the Revenue in any case is not aggrieved by the order of the earlier Additional Commissioner. The appellants are not agitating against the order passed by the earlier Additional Commissioner; (and they also possibly cannot because the said order was passed after the appellants waived the show cause notice, thereby, in effect, agreeing to not insist on following the principles of Natural Justice); they are only agitating against the aforesaid two additional conditionalities ordered by subsequent Additional Commissioner. We have already held that the subsequent Additional Commissioner had no authority to sit in judgment over the decision of the earlier Additional Commissioner as he was neither the revisionary authority nor the appellate authority for the latter. Thus the additional conditionalties have no force in law inasmuch as they in effect modify the order of earlier Additional Commissioner for doing which the latter Additional Commissioner had no authority. We make it clear that we are not expressing any opinion regarding the legal requirement for import license or clearance from Ministry of Environment and Forest
4. In view of the foregoing, we allow the appeal only to the limited extent of setting aside the additional contionalities mentioned in Para 1 above.
(Dictated and pronounced in the Court)
(P.K. Das) (R.K. Singh)
Member (Judicial) Member (Technical)
..KL
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