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 ... Maintainability of appeal - refusal to hear the Appeal filed against the decision/order of the Deputy Commissioner dated 12-4-2016, which conveyed to the Assessee, a clarification issued by the Central Board of Excise & Customs on 22-12-2015, by quoting the same in the said communication dated 12-4-2016 - HELD THAT:- The Tribunal erred in not entertaining the Appeal on merits. The Learned Commissioner (Appeals) vide order dated 27-2-2015 had directed the Departmental authority to seek suitable clarification from the Board, which was done and the Board issued the clarification on 22-12-2015 which was conveyed to the Assessee by Deputy Commissioner of Customs vide Communication dated 12-4-2016. The said communication cannot be said to be an adjudicating order or decision and it does not decide the rights of the parties - Hence, the Tribunal ought to have decided the Appeal on merits and in accordance with law instead of relegating the Appeallant to Commissioner (Appeals) again by observing that the appropriate Appellate Authority for any decision/order of the Deputy Commissioner dated 12-4-2016 would only be the Commissioner (Appeals). The Tribunal which is a fact finding body ought to decide the case on merits, taking into account the alleged clarification issued by the Board itself, instead of unnecessarily rejecting the Appeal, by citing such as the aforesaid reason - the Tribunal should decide the Appeal on merits and as per law. Appeal allowed - the order of the Tribunal dated 1-1-2019 is set aside, by restoring the appeal back to the Learned Tribunal to decide the Appeal on merits and in accordance with law. 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.