TaxTMI 
TaxTMI 
2024 (6) TMI 255
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....orted further under five Shipping Bills to M/s. Fonderic Alfredo Lamperti S.R.L., Italy. The assessee claimed the refund on the ground that assessment during re-importation under Notification No. 94/96-CUS dated 16.12.1996 was not proper. As the respondents were entitled for benefit of Notification No. 158/95-CUS dated 14.11.1995, wherein no CVD was payable. 2. The original authority, however, rejected the impugned refund claim for reasons that the goods were exported initially availing benefit under DEPB scheme and as also the assessee themselves adopted for assessment under Notification No. 94/96-CUS dated 16.12.1996. Thus, no refund was being admissible to them under Section 27 of the Customs Act. 3. Vide the Order-in-Appeal, challenging the impugned adjudication Order-in-Appeal, filed by the respondent, the Ld. Commissioner (Appeals) however, allowed the appeal stating that the appellant was entitled to the refund of CVD alongwith interest. The Ld. Commissioner (Appeals) also noted that the respondent were not in receipt of the DEPB benefit towards the said goods and his findings in the matter are reproduced hereunder:- "6. The lower authority has himself observe....
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....oved on - 30.07.2010 16. Fair copy of Review Order signed on - 03.08.2010 17. Review Order No. KOL/Cus/PORT/REVIEW/47/2010 dated 03.08.2010 forwarded to Tribunal Cell for filing appeal before Hon'ble CESTAT 05.08.2010 4.1 As evident from the above-referred time chart, it is observed that the Deputy Commissioner of Customs (Port) (one of the members of the Review Committee) had accepted the Order-in-Appeal dated 26.10.2009 vide his endorsement dated 09.02.2020. While the Deputy Commissioner of Customs (Prev.) had expressed a difference of opinion vide his endorsement in file dated 11.02.2010. Thus, at the time of earlier hearing in the matter, the Ld. Advocate for the respondents took a preliminary objection about the veracity and legality of the filing of the appeal alleging that the said appeal was not filed in accordance with the provisions of section 129D. 4.2 It may not be out of place to point out that the Tribunal vide its Misc. Order No. M/262/KOL/2011, S/419/2011 dated 22.12.2011 had condoned the delay in filing of the appeal. Being aggrieved with this order passed by the Tribunal, the present respondent approached the Hon'ble High Court of Calcut....
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....e file was transmitted up and down from the Joint Commissioner to the Review Section officers. We find that subsequently there is an exchange of notes happening in the matter. Pursuant thereto a Review Order has been prepared by Appraiser Shri D.B. Roy of Kolkata Customs and the same has thereafter been perused by the Commissioner (Port), who has recorded the following observations on note sheet 8 :- "For the reasons stated in the note sheet and the draft, the case is fit for filing appeal please." This note is dated 10.06.2010. Finally the Commissioner (Prev.) on 11.06.2010 endorses as under:- "I agree, but facts are not coming properly in the draft. Let the draft be seen again by section." Post-correction/rectification of the draft and its consideration both Commissioner of Customs (Port) and Commissioner of Customs (Prev.) as per note sheet dated xi/n have signed the Review Order on 29.07.2010 and 30.07.2010 respectively, directing the filing of the appeal. 8. It is further noticed that this interaction, exchange of views, consideration and deliberations between the two officers and their concerned sections, from the time of the first note referred to (supra) till....
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....to the decisions of the Hon'ble Delhi High Court on this aspect of the matter in the case of Commissioner of Service Tax vs. Japan Airlines International Co. Ltd. [2015 (39) S.T.R 541 (Del.)], wherein the Hon'ble High Court held as under:- "10. Before we proceed further, it may be relevant to extract the provisions of Section 86 (2) of the Finance Act, under which, the Committee of Commissioners, is said to have exercised its power to institute the appeal in the Tribunal. "86.(1). Any assessee aggrieved by an order passed by a Commissioner of Central Excise under Section 73 or Section 83A or an order passed by a Commissioner of Central Excise (Appeals) under Section 85, may appeal to the Appellate Tribunal against such order "within three months of receipt of the order". (1A)(i) The Board may, by notification in the Official Gazette, constitute such Committees as may be necessary for the purposes of this Chapter. (ii) Every Committee constituted under clause (i) shall consist of two Chief Commissioners of Central Excise or two Commissioners of Central Excise, as the case may be. (2) The Committee of Chief Commissioners of Central Excise ....
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....mes to such a conclusion then, it is mandated to direct the Commissioner of Central Excise to prefer an appeal to the Tribunal. 10.2 Under sub-section (1A )(i), the Board is empowered by a notification published in the Official Gazette to constitute the Committee of Commissioners. Sub-clause (ii) of sub-section (1A) of Section 86 provides that the Committee so constituted shall either comprise of two Chief Commissioners of Central Excise or two Commissioners of Central Excise, as the case may be. 10.3 Where, however, the Committee of Commissioners differs in its opinion qua the order of the Commissioner of the Central Excise, it is required to state the point or points of difference and place the same by way of a reference before the Board which, after considering the facts of the order, can direct, the Commissioner of Central Excise to prefer an appeal to the Tribunal if, it is of the opinion that the order of Commissioner of Central Excise, is not legal or proper. 10.4 Under sub-section (2A) of Section 86, an identical methodology is provided where the Committee of Commissioners objects to any order passed by the Commissioner of Central Excise (Appeals)....
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....ts nor is a hearing required to be given by the Committee. All that the Committee of Commissioners does is to ascertain as to whether or not the adjudication order is impregnated with aspects which go against the interest of the Revenue, and if so, whether or not they are already covered by decisions rendered by superior Courts. The decision rendered by the Committee of Commissioners, in our view, does not have the attributes of a quasi-judicial function. 10.10 Furthermore, the instruction issued by the Revenue, is largely pivoted on the decision of the Division Bench of this Court rendered in Kundalia Industries' case, which in any event, is the subject matter of the instant reference. For the reasons that we would give hereafter, it would be clear that the approach commended in Kundalia Industries case does not find favour with us. 11. Therefore, having regard to the above, which is, that in our opinion, the decision rendered by the Committee of Commissioners is an administrative function, it would, to our minds, therefore, not require the members of the Committee to meet, consult and give independent reasons, as contended before us by Mr. Mittal. 11.1 ....
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....e purpose behind seeking reasons is not only to do away with the allegation that the conclusion reached is arbitrary and/or unfair but, is also insisted upon, to enable the aggrieved party, as also, a superior authority (which could be a statutory authority or Court or Tribunal) to ascertain as to what weighed with a decision making authority in reaching its conclusion. The principle has been summed up in the case of Alexander Machinery (Dudley) Ltd. v. Crabtree, 1974 LCR 120 that the decision of an administrative, quasi-judicial or even a judicial authority should not represent an "inscrutable face of a sphinx". 12.1 Therefore, while one cannot but agree with the proposition that there should be material on record which reflects the reasons as to why the Revenue wishes to prefer an appeal, what does not flow from that, is that, the Committee of Commissioners should necessarily give their own reasons if they otherwise agree with the reasons already on record. In the facts of the case, the record itself shows, to which, we have made a reference above, as to why the Revenue was desirous of preferring an appeal. The reasons set out were cogent and substantial. As to whether t....
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....by the Committee of Commissioners which does not bear independent reasons would lay it open to challenge, in our opinion, would be not only erroneous but would also render the exercise inefficacious and impractical. In our view, the limited scrutiny that the Tribunal may conduct when there is an objection raised as regards the maintainability of the appeal is, to examine, as to whether, a decision has been taken by the officers, who ought to form part of the Committee of Commissioners. Once, the record shows that a decision has been taken to file an appeal then, in our opinion, it is beyond the remit of the Tribunal to either examine the sufficiency of the material or the "appropriateness/desirability of instituting the appeal"; as these are aspects with respect of which, responsibility has been placed on the Committee of Commissioners. 12.7 The Tribunal, while acting as an appellate authority, in our view, has no jurisdiction whatsoever to strike down a decision taken by the Committee of Commissioners on the administrative side. As indicated above, the only aspect that the Tribunal can examine is, as to whether or not there is on record a decision of the Committee of Comm....
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....issioner himself to record independent reasons, there is no deficiency in the administrative action. Indeed, the rationale for Section 86 (2) was considered by the Supreme Court in Collector of Central Excise v. Berger Paints, (1990) 2 SCC 439, in the following words : "6. Having regard to the purpose of these rules as we conceive it, namely, to ensure that there was an application of mind to the points in respect of which the question for filing an appeal arose and that the appeal was duly authorised by the Collector, and was filed by the person authorised by the Collector in order to ensure that frivolous and unnecessary appeals are not filed, we are of the opinion that in the present context and in view of the terms of the rules and the purpose intended to be served, the appeal was competent and was duly filed in compliance with the procedure as enjoined by the rules. It has to be borne in mind that the rules framed therein were to carry out the purposes of the Act. By reading the rules in the manner canvassed by Dr. Pal, Counsel for the respondent, before us which had prevailed over the Tribunal, in our opinion, would defeat the purposes of the rules. The language of t....
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....w, which, as discussed, is clearly the case in these proceedings..." 12.9 As would be evident, the Court considered not only the decision of the another Division Bench in the case of Kundalia Industries but also the decision of the Supreme court in the case of Collector of Central Excise v. Berger Paints. It would be pertinent to note that against the decision rendered by the Division Bench in LR Sharma-1, the matter was carried to the Supreme Court, which dismissed the Special Leave Petition in limine vide order dated 7-7-2014, passed in SLP Nos. 14544-14545/2014. As a matter of fact, a review petition bearing Nos. 2521-2522/2014, was also preferred, which was dismissed, once again, in limine, on 27-11-2014. 13. As noticed above, in L.R. Sharma-1's case, a Division Bench of this Court had noticed, inter alia, a decision rendered by another Division Bench of this Court in Kundalia Industries's case as also the judgment of the Division Bench of the Allahabad High Court in Ufan Chemicals. The decisions both in Kundalia Industries as well as Ufan Chemicals pertain to Section 35B (2) of the Central Excise Act, 1944 (in short the Central Excise Act). The two decisions ....
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....e Punjab and Haryana High Court in : B.E. Office Automation Products Pvt. Ltd. Accordingly, the two judgments of the Tribunal cited by Mr. Mittal, i.e., in V.S. Exim Pvt. Ltd. and Super Cassettes Industries Ltd., in our view, do not state, the correct position in law. As a matter of fact, the decision rendered by another Division Bench of the Allahabad High Court, in Devson Steels [2014 (301) E.L.T. 295 (All.)], accords, with a view taken by us. 15. Before we conclude, we may also refer to a decision dated 2-11-2012, rendered by a Division Bench of this Court in : WP(C) 6918/2012, titled : LR Sharma and Co. v. Commissioner of Service Tax and Ors. (hereafter referred to as LR Sharma-2). 15.1 As is obvious, this was a decision rendered in a writ petition by a Division Bench. By this decision, which is really in the nature of an order, the assessee had questioned the maintainability of the appeal pending before the Tribunal on the ground that a review of the order of the Committee of Commissioners did not validly take place (by which we would understand that a meeting was not convened) in terms of Section 86 (2) of the Finance Act. The Division Bench by a short order....
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....elay in filing of the appeal has already been condoned by this Tribunal, we direct the Registry to list the case for final hearing on merits. (Order pronounced in the open court on) PER ASHOK JINDAL : 13. I have gone through the order drafted by the Ld. Brother, Member (Technical). As I am not with the agreement with the observations made by the ld. Member (Technical), I am recording a separate order. 14. In this case, as per the order of the Hon'ble High Court of Calcutta dated 2nd August, 2012, one of the questions is to be decided by this Tribunal in respect of maintainability of appeal for non-compliance of the provisions of Section 129A (2) of the Customs Act, 1962. For better appreciation, the said provisions of Section 129A (2), are extracted herein below : "(2) [The Committee of Principal Commissioners of Customs or the Commissioner of Customs] may, if it is] of opinion that an order passed by the Appellate [Principal Commissioner of Customs or Commissioner of Customs] under section 128, as it stood immediately before the appointed day, or by the [Commissioner (Appeals)] under section 128A, is not legal or proper, direct the proper officer to ....
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....Thereafter, he changed his view and filed the appeal and agreed with the Commissioner of Customs (Preventive) that an appeal needs to be filed against the impugned order, which means that the Commissioner of Customs (Port) has reviewed his own order, which is not permissible in law. Therefore, the observation of the Ld. Commissioner of Customs (Port) dated 03.08.2010 is against the law and the same cannot permissible. 20. Further, if the Commissioner of Customs (Port) initially has accepted the impugned order and made his observations that the same may be accepted and thereafter, if the Commissioner of Customs (Preventive) is having a different view, in that circumstances, in terms of Section 129A (2) of the Customs Act, 1962, the matter was to be placed before the Principal Chief Commissioner of Customs or the Chief Commissioner of Customs, who is required to examine the issue and making a view that the appeal can be filed or not, which is not done in this case. 21. In that circumstances, I am of the considered view that as the Commissioner of Customs has made a view on 09.02.2010 that the impugned order may be accepted, in that circumstances, if any appeal is filed without ....
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....e facts and circumstances of the case and the file notings whether the Member(Judicial) is correct holding that the Member of Committee of Commissioners [Commissioner of Customs (Port)] has arrived at the opinion on 19.02.2010 not to file an appeal against the impugned order, therefore, the matter is required to be referred to the Chief Commissioner of Customs in terms of the provisions of proviso to Section 129A (2) of the Customs Act, 1962; Or In the facts and circumstances of the case and the file notings whether Member(Technical) is correct in holding that the noting dated 09.02.2010 was only the initiation of a consultative process in discharge of powers vested under Section 129D (2) of the Customs Act, 1962 in the Commissioner (Port), and not formation of an opinion made by him as a Member of the Committee of Commissioners [Commissioner of Customs (Port), Commissioner of Customs (Prev.)] particularly as his expression dated 09.02.2010 uses the word "may" and therefore, a need for recourse to the provision of Section 129A (2) was not warranted. 2. On 29.02.2024 the Difference of Opinion matter was taken up for Hearing. This is an Appeal filed by the Revenu....
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....ly as the Revenue had to explain the delay caused while filing the Appeal, on the specific directions of this Tribunal all the internal note sheets have been provided to the Tribunal for their official purpose. The Respondent is precluded from using the administrative notings of the Revenue to canvass their case to set aside the Appeal on account of some points raised therein. 4. In view of the above submissions, he prays that the stand taken by the Respondent that the proviso to Section 129A (2) has not been followed in this case, is required to be dismissed. He fully relies and supports the decision of Hon'ble Member (Technical) who has come to a conclusion that the Appeal does not suffer with any infirmity in terms of proviso to Section 129A (2) of the Customs Act, 1962. 5. The Ld. Advocate appearing on behalf of the Respondent submits that the Hon'ble Member (Technical) has held that the word 'may' used by the Commissioner (Port) does not convey that it was his final decision, but it is only an expression given by him in the relevant Review Order filed. He submits that this conclusion is erroneous and points out from the note sheets that the word 'may' has been used not o....
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....risdiction to consider this point when such an objection is taken by the Respondent. Because of Hon'ble High Court's order, he submits that the Larger Bench decision in the case of Commissioner of C.Ex., Raipur vs. Monnet Ispat & Energy Ltd, cited (supra) by the Ld.AR for the Department would not be applicable in this case. 7. So far as the point made by the Ld.AR for the Department about this issue being that of administrative in nature, he submits that Section 129A (2) and proviso thereto are statutory provisions which are required to be followed and they are not mere administrative proceedings. Therefore, there cannot be any deviation from the procedures cited under these provisions. 8. He relies on the detailed findings of the Hon'ble Member(Judicial) and supports the decision awarded by him. 9. In view of these submissions, he submits it may be held that the Revenue has not fulfilled the conditions of proviso to Section 129A (2) of the Customs Act, 1962. 10. I have carefully gone through the submissions made by both the sides and also through all the documents available on record. 11. Admittedly, the Department has filed the Appeal with a delay of 210 days along....
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..../PORT/REVIEW/47/2010 dated 03.10.2010, it is seen that it is stated that the Committee of Commissioners consisting of Commissioner of Customs (Port) and Commissioner of Customs (Preventive) have called for perusal of the records pertaining to the Order-in-Appeal No. KOL/CUS/CKP/626/2009 dated 26.10.2009. This Review Order does not speak of the details contained in the Affidavit and gives an impression that review was conducted by both the Commissioners and they have agreed for the proposal to file the present Appeal, which is factually incorrect as per my above observations. 16. From the above details it is clear that a detailed Note Sheet was prepared (which is available at Page II and III), by the concerned official Shri D.B. Roy, Appraiser, Kolkata Customs with his recommendation on 24.01.2010, further recommended by AC (R) on 01.02.2010 and the Commissioner (Port), has accepted the same on 09.02.2010. As discussed above, the Affidavit Para (1) (e) clearly states that on or about 09.02.2010, the proposal for acceptance of the said Order-in-Appeal was accepted by the Commissioner of Customs (Port). Therefore, this does not leave out any scope to take a different view that on 0....
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....is consent. 21. It is also noted that the Commissioner (Port), who had initially taken that stand that 'the Order-in-Appeal may be accepted', is not the Commissioner (Port) now who has subsequently signed the proposal to file an appeal against Order-in-Appeal and who has approved the draft Review Order. In such a case, it would amount to review and over-ruling the earlier proposal to "accept the OIA" by the then Commissioner (Port), by the present Commissioner (Port), which is not permissible. Even on this count, the issue should have been referred to the Principal Chief Commissioner/Chief Commissioner in terms of proviso to Section 129A (2). 22. Section 129(2) of the Customs Act, 1962 reads as under:- SECTION 129A. Appeals to the Appellate Tribunal. - ........................................................... ........................................................... (2) The Committee of Commissioners of Customs may, if it is] of opinion that an order passed by the Appellate Commissioner of Customs under section 128, as it stood immediately before the appointed day, or by the Commissioner (Appeals) under section 128A, is not legal or pro....
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....ondonation of 210 days, this Bench had called for the chronological event details of this case by directing the Commissioner (Port) to file an Affidavit. As part of the Affidavit, the details of the facts were disclosed. Once these facts are disclosed and are in public domain, the Revenue is precluded from taking a stand that the Respondent cannot use the points made under the Affidavit to defend their case. 25. So far as the Revenue's point that consultative discussions have taken place and the resultant Review order is correctly signed by both the Commissioners, as per my detailed observations above, the consultative discussions started after the objection was raised by the Customs (Preventive). This itself shows that there was a difference of opinion towards the stand to be taken between these two Commissioners. In that case, the proper procedure to be followed was to have referred the matter to the Principal Chief Commissioner or Chief Commissioner to decide the issue in terms of proviso to Section 129A (2) which was not done in this case. 26. Another objection taken up by the Revenue during the present arguments was that the Respondent is required to take these submissio....
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.... 129A of the Customs Act, 1962 and the Revenue has not referred the matter to the Chief Commissioner of Customs in terms of the provisions of proviso to Section 129A of the Customs Act, 1962. Accordingly, the appeal is not maintainable and the same is dismissed. Sd/ (Ashok Jindal) Member (Judicial) Sd/ (Rajeev Tandon) Member (Technical) ============= Document 1 The following Order-in-Original(s) 7 Appeal(s) received fr is/are placed at Page No. SL IC may please be sech IC Onlin Ogal/Appeat No Dood E.No. S (Misc) 2009 RAC Narde of the Party M/S (department) 1626/03 28/10 Chemong Tea Expoli Smitted for your disposal please. R/C) AS (RIL). Order. in. Appeal No KOL/Cus/ cup/626/09 de 26.10.9 placed opposite may kindly be seen. In this Care refund of cor duly paid at the lime of reimportation of exported goods. Ac refund passed Order rejecting bir claim vide it's order on original No 21/09 ARS de 27.7.09. Against-Said order fakedly Ac. ARs an appeal was filed before lui Commissione appeal. Appellate anthority ahoused be refund allong with interest of delayed payment. In view of the above a off....