2009 (3) TMI 796 - AT - Customs

Assistant Commissioner's Communication not an Order under Customs Act; Appeal Deemed Not Maintainable

The Tribunal held that a communication dated 23-2-06 by the Assistant Commissioner did not qualify as an order under Section 129A of the Customs Act, as ... Order - Appealable order Issues:1. Maintainability of the appeal based on a communication dated 23-2-06 as an order subject to appeal under Section 129A of the Customs Act, 1962.Analysis:The appeal before the Appellate Tribunal CESTAT, New Delhi was filed by the Department against a communication dated 23-2-06 by the Assistant Commissioner, New Delhi. The Department argued that the communication constituted an order by the adjudicating authority and was appealable under Section 129A of the Customs Act, 1962. However, the respondent raised a preliminary objection regarding the maintainability of the appeal, contending that the communication could not be considered an order under the provisions of Section 129A.The Tribunal examined Section 129A of the Customs Act, which specifies four types of orders that can be appealed before the Tribunal. The first type includes a decision or order passed by the Commissioner of Customs as an adjudicating authority. In this case, the Tribunal noted that the impugned communication did not disclose any order or decision by the Commissioner as an adjudicating authority. The Department failed to provide any satisfactory evidence of a finalization of assessment or an order preceding the communication, indicating a lack of adjudication by the competent authority under the Act.The Tribunal emphasized that the right to appeal is a statutory provision, and unless a statute specifically allows for appeal, no appeal lies against any order under the statute. The absence of an authoritative finalization of a decision or point in issue meant that the communication could not be considered an order subject to appeal under Section 129A. The Tribunal concluded that the impugned communication could not be made the subject matter of appeal before the Tribunal under Section 129A of the Customs Act.Additionally, the Tribunal noted that the respondents had filed cross objections under Section 129A(4) but later decided to withdraw them. Consequently, the appeal was rejected, and the cross objections were allowed to be withdrawn, resulting in the disposal of both the appeal and the cross-objections.In summary, the Tribunal ruled that the communication dated 23-2-06 did not constitute an order by the competent adjudicating authority and therefore could not be the subject of an appeal under Section 129A of the Customs Act, 1962. The appeal was rejected, and the cross objections were allowed to be withdrawn, leading to the disposal of both.