2019 (11) TMI 572 - HC - Customs

Court allows appeal, sets aside Tribunal decision. Communication not an order. Tribunal to reconsider appeal.

The Court allowed the appeal, setting aside the Tribunal's decision not to hear the appeal based on a clarification issued by the Central Board of Excise ... Adjudicating order - clarification by the Board of Customs - appellate jurisdiction - power to entertain appeal on merits - role of the tribunal as fact-finding bodyAdjudicating order - clarification by the Board of Customs - Communication dated 12-4-2016 conveying the Board's clarification is not an adjudicating order and does not decide the parties' rights. - HELD THAT: - The Commissioner (Appeals) had directed the departmental authority to seek a clarification from the Board, which the Board furnished on 22-12-2015 and which was conveyed to the assessee by the Deputy Commissioner by communication dated 12-4-2016. The Court held that that communication merely conveyed the Board's clarification and did not constitute an adjudicating order or decision determining rights. Consequently, the communication could not be treated as an order attracting a separate appellate route as if it were a decision disposing of rights. [Paras 7]Communication dated 12-4-2016 is not an adjudicating order.Appellate jurisdiction - power to entertain appeal on merits - role of the tribunal as fact-finding body - Whether the Tribunal erred in refusing to entertain the appeal and ought to have decided it on merits. - HELD THAT: - The Tribunal declined to entertain the appeal on the ground that any decision or order of the Deputy Commissioner dated 12-4-2016 should be first subject to appeal before the Commissioner (Appeals). Having held that the communication was not an adjudicating order, the Court concluded that the Tribunal should not have rejected the appeal on that basis. The Tribunal, being a fact-finding appellate body, was required to consider and decide the appeal on merits, taking into account the Board's clarification, rather than relegating the assessee to file a fresh appeal before the Commissioner (Appeals). The Court therefore found error in the Tribunal's refusal to adjudicate the appeal on its merits and directed restoration for adjudication in accordance with law. [Paras 7, 8, 9]Tribunal erred in refusing to entertain the appeal; appeal is to be decided on merits by the Tribunal.Final Conclusion: Appeal allowed; order of the Tribunal dated 10-1-2019 set aside and the appeal restored to the Tribunal for decision on merits and in accordance with law. No costs. Issues:Appeal against refusal to hear by Tribunal on clarification issued by Central Board of Excise & Customs.Analysis:The appeal was filed by the Assessee against the Tribunal's decision not to hear the appeal regarding a clarification issued by the Central Board of Excise & Customs. The clarification was sought by the Departmental authority based on directions from the Commissioner (Appeals-II) regarding the non-mentioning of CTH 4809 in certain notifications. The Commissioner felt it could be an inadvertent omission and directed the Departmental authority to seek clarification from the Board. The Board issued a clarification on 22-12-2015, which was conveyed to the Assessee by the Deputy Commissioner of Customs on 12-4-2016. The Assessee initially approached the Court through Writ Petitions, which were disposed of, directing the Assessee to approach the Appellate authority and then the Tribunal. The Tribunal, however, refused to entertain the appeal on merits.The Assessee argued that the communication from the Deputy Commissioner was not an adjudicating order, and the Tribunal should have considered the appeal on its merits instead of directing the Assessee to file another appeal before the Commissioner (Appeals). On the other hand, the Revenue's Counsel justified the Tribunal's decision, stating that the appropriate appellate authority for the Deputy Commissioner's decision is the Commissioner (Appeals). The Court held that the Tribunal erred in not entertaining the appeal on its merits. The communication from the Deputy Commissioner did not decide the rights of the parties and should not be considered an adjudicating order. The Tribunal, being a fact-finding body, should have decided the case on its merits, considering the clarification issued by the Board. Therefore, the Court allowed the appeal, setting aside the Tribunal's order and restoring the appeal back to the Tribunal to be decided on its merits and in accordance with the law.