2024 (1) TMI 1089

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.... for their imports from M/s. Korea Fueltech Corporation, Korea (supplier). 3. The reviewing authority namely, the Deputy Commissioner of Customs, traced the earlier examination by the SVB during 2007 and the then competent authority had issued Circular No. 51/2007 dated 10.04.2007 for payment of 1% EDD; since there was no response from the importer, Order-in-Original No. 7497/2008 dated 31.03.2008 was passed, wherein it appears that the declared value was accepted as the transaction value for the purposes of assessment of duty under Rule 3(3)(b) of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 and it was this order that was renewed vide Order-in-Original No. 16265/2011 dated 10.06.2011. It is also a fact born....

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....ecords and evidences and pass any such order as deemed fit under law." 6. In terms of the said direction, the Deputy Commissioner/adjudicating authority filed an appeal before the Commissioner (Appeals) with a prayer to set aside the Order-in-Original. It appears that even the assessee had filed its cross-objection primarily attacking the request for remand since the first appellate authority was not having any power to remand vide amendment made with effect from 11.05.2001. 7. The first appellate authority appears to have considered the counter-claims of both the Department as well as the cross-objector and thereafter, has passed the common Order-in-Appeal C.Cus. No. 1743/2014 dated 25.09.2014 wherein he has annulled the Order-in-Origina....

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....learly observed that the Commissioner (Appeals) has been divested of the powers to remand the cases back to the adjudicating authority vide amendment made in 2001; but however, the same is subject to the provisions of Section 128A(3)(b) of the Customs Act, 1962. Section 128A(3)(b) is reproduced below for convenience: - "SECTION 128A. Procedure in appeal. - (1) The Commissioner (Appeals) shall give an opportunity to the appellant to be heard if he so desires. ... (3) The Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass such order, as he thinks just and proper, - ... (b) referring the matter back to the adjudicating authority with directions for fresh adjudication or decision, as the case may....

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.... to the original adjudicating authority for proper examination of all the records and evidences and there was no specific prayer for "remand"; hence, the order of the first appellate authority is just and proper. 11.2 We do not accept the above contentions of the Ld. Additional Commissioner since, as recorded by the Commissioner (Appeals) himself at pages 4 and 5 of the impugned order, the appeal was filed with a prayer to remand, that is to say, the same must have been requested / prayed for during the course of arguments and hence, the word "remand" finds place at two places in the impugned order. In any case, even the order of the Commissioner (Appeals) as to allowing the Department appeal and 'prayer', satisfy us that what is passed by....