2023 (12) TMI 489

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....RORA Shri Sarju Mehta , CA appeared for the Appellant Shri A R Kanani , Superintendent ( Authorized Representative ) for the Respondent ORDER SOMESH ARORA Appellants are aggrieved with the impugned order and have filed the present appeal. The issue involved in the present case is that the appellants imported Malvern Master Sizer, which they sought to be classified under Tariff Headi....

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....hat the Commissioner (Appeals) has the power under Section 128A (3), to modify order but only after inquiry which should be Just & Proper, which is reproduce below: "128A (3) [The Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against:] Pro....

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.... In the Customs Act, in section 128A, in sub-section (3), for the words "just and proper, confirming, modifying or annulling the decision or order appealed against", the following shall be substituted, namely:- "Just and proper,- (a) confirming, modifying or annulling the decision or order appealed against; or (b) referring the matter back to the adjudicating aut....

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....inquiry it appears was conducted about the product or details and the matter has been decided without opportunity to the appellants. Appellants too are agreeable and seek remand, but with rider of opportunity about correct classification on (even of third head). 4. In view of this, we find that change of heading by the Commissioner (Appeals), without affording opportunity is improper, and same ....