1989 (2) TMI 298 - AT - Customs

Appeal admitted for hearing on merits, Collector's order set aside, matter remanded for review.

The appeal was admitted for hearing on merits based on a prima facie case presented by the Counsel, allowing both parties to proceed. The judgment set ... Admission of appeal on merits - remand for de novo consideration - Section 13 substantive compliance - procedural irregularities not to defeat substantive relief - verification whether shortage was noticed before pass-out orderAdmission of appeal on merits - Appeal admitted for hearing on merits. - HELD THAT: - The Tribunal, on prima facie consideration of the material placed by the appellant (including the survey report and Bill of Entry), found that a sufficient case was made out to entertain the second appeal on merits and therefore admitted the appeal for further hearing. The admission was directed to enable both parties to proceed on merits. [Paras 4]Appeal admitted for hearing on merits and both sides permitted to further proceed.Remand for de novo consideration - Section 13 substantive compliance - procedural irregularities not to defeat substantive relief - verification whether shortage was noticed before pass-out order - Whether the orders below should be sustained or the matter should be remanded for fresh consideration in light of substantive compliance and evidentiary defects noted. - HELD THAT: - The Tribunal concluded that the Assistant Collector and the Collector (Appeals) had not sufficiently taken into account the material relevant to the claimed shortage (survey report, Bill of Entry and related facts) and that minor procedural or technical lapses should not preclude relief where substantive compliance under Section 13 could be shown. The Tribunal observed that the Assistant Collector must satisfy himself as to whether the shortage was detected during Customs examination and prior to the Pass-out Charge/Order, and must consider all relevant documents and afford the appellants an opportunity of hearing. In consequence, the Tribunal found the Collector (Appeals) order unsustainable and directed a de novo decision by the Assistant Collector, with liberty to verify documents and rehear the parties. [Paras 11, 12]Order of the Collector (Appeals) set aside; matter remanded to the Assistant Collector for de novo consideration in accordance with law, including verification whether shortage was noticed before pass-out order and giving the appellants an opportunity of hearing.Final Conclusion: The Tribunal admitted the appeal on merits, set aside the Collector (Appeals) order and remanded the matter to the Assistant Collector for fresh de novo consideration to verify whether the shortage was noticed prior to the pass-out order, to take all relevant facts under Section 13 into account and to afford the appellants a hearing before passing a fresh order. Issues:- Preliminary objection regarding the amount involved in the appeal- Rejection of the appeal by the Asstt. Collector and the Collector (Appeals) based on unsubstantiated shortage claim- Discrepancies regarding the shortage noticed at the time of Customs examination- Compliance with Section 13 requirements and Public Notification No. 276/64Analysis:1. The judgment begins with a preliminary objection raised by the Ld. J.D.R., stating that the amount involved in the appeal is less than Rs. 10,000, questioning whether the appeal is fit for being heard on merits as a second appeal.2. The Ld. Counsel for the Appellants argues that the shortage was detected before the out-of-charge order, supported by survey evidence and documentation presented to the original authority, but was rejected as unsubstantiated by the Asstt. Collector.3. The Counsel further contends that the Collector (Appeals) also dismissed the appeal without considering the crucial fact of shortage detection prior to the out-of-charge order.4. The appeal is admitted for hearing on merits based on the prima facie case presented by the Counsel, allowing both parties to proceed in the matter.5. The Ld. Counsel elaborates on the shortage detected during Customs examination, providing details of the bundles and pieces involved, supported by insurance survey and Customs Appraisers' certification, along with relevant documentation.6. The Ld. Counsel argues that the Collector (Appeals) referenced the absence of packing lists in the decision, emphasizing the established trade practice regarding bundle contents and weight per bundle, which should have been considered in determining the shortage.7. The Appellants claim to have informed the concerned authorities about the shortage, submitted an undertaking for refund if the shortage was confirmed, and assert that the Asstt. Collector should have examined the case on its merits and allowed their claim.8. The Ld. J.D.R. raises concerns about discrepancies in the records regarding the timing of shortage detection and the absence of certain essential documents, questioning the completeness of information provided.9. The J.D.R. highlights the non-submission of a certificate from the Calcutta Port Trust and a claim lodged with the Trust as required by Public Notification No. 276/64, indicating potential non-compliance with Section 13 requirements.10. The Ld. Counsel reiterates that the shortage was noticed before the Pass-out Order, asserting compliance with legal provisions and challenging the significance of Trade Notices or Public Notices in depriving them of their legitimate dues.11. The judgment acknowledges the force of the Counsel's arguments, emphasizing the Asstt. Collector's obligation to consider all relevant facts and circumstances, stating that minor procedural infractions should not hinder relief if substantive compliance with the law is demonstrated.12. Consequently, the order of the Collector (Appeals) is set aside, and the matter is remanded to the Asstt. Collector for reconsideration in accordance with the law, directing a thorough review of relevant documents, verification of the shortage timing, and providing the Appellants with an opportunity to be heard before a new decision is made.