TaxTMI 
TaxTMI 
TaxTMI 
2024 (6) TMI 255
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....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 observed that when the goods were exported, the appellant did....
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....VIEW/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 Calcutta, who vide order dated 02.08.2012 while disposing the Writ Petition directed the Tribunal for hearing of the matter "including the q....
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....ter. 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 - aforesaid signing of the Review Order is a part of the decision-making process. It is further noticed that in interregnum of the statutory authority (as per section 129A (2)) i.e....
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....l.)], 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 may, if it objects to any order passed by the Commissioner of Central Excise under Section 73 or Section 83A, direct the Commissioner of Central Excise to appeal to the Appellate Tribunal against the order. Provided that....
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....ommittee 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), under Section 85 of the Finance Act. 10.5 Beyond this, the section does not state as to the manner in which Committee of Commissioners have to arrive at a decision as to whether an appeal should be preferred against the order of Commissioner of Central Excise. As is abundan....
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.... 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 In our view, a meeting and/or consultation is not mandatory so long as each member of the Committee has the requisite material placed before him prior to a decision being taken as to whether or not an appeal is to be preferred. It may be a wholesome circumstance to have a meeting and consultation between the members of the Committee....
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....on. 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 the reasons recorded would finally persuade the Tribunal to hold in favour of the Revenue is not what concerns the Committee of Commissioners. This is so as it is an unilateral administrative decision of an aggrieved party, i.e., the Revenue. 12.2 Therefore, having regard to the above, should the decision of the Committee of Commissioners be overturned merely on the ground....
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....aken 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 Commissioners to institute an appeal. Once, such a decision is shown to have been taken then, the Tribunal, will entertain the appeal and adjudicate upon the same on merits; albeit in accordance with law. 12.8 The view that we have taken above is also the view that has been taken by a Division Bench of this Court in L.R. Sharma-1's case, of which, one of us (S. RavindraBhat, J.), was a Member. The Division Bench in t....
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.... 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 the relevant Section and the rules as we have noticed, do not warrant such a strained construction." 8. The reason for the introduction of Section 86 (2), rather than permitting the filing of appeals by lower officers themselves, is to ensure that frivolous and unnecessary appeals are not filed. Indeed, in this case, as in all cases, the merits of the case will be decided by the CESTAT, and if there presents no reasonable argument fro....
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....eme 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 have taken, a diametrically, opposite view. While in Kundalia Industries's case, the Revenue's appeal was rejected on the ground that the Committee of Commissioners had only appended their signatures to a note prepared by subordinate officers, which, articulated a need for filing an appeal before the Tribunal, the Division Bench of the Allahabad High Court, allowed the appeals of the Revenue despite the fact that the Committee of Commissioners had acted on....
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....o 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 permitted the petitioner/assessee to raise the said objection by way of a preliminary issue before the Tribunal. 15.2 For the reasons given above, in our view, this approach is inconsistent with the purpose and the object for which Section 86 (2) has been incorporated in the Finance Act. As articulated hereinabove, the role of the Tribunal is, limited to only ascertaining as to whether or not the Committee of Commissioners (comprising of duly authorised officers) has taken a decision to institute the ....
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....y 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 appeal [on its behalf] to the Appellate Tribunal against such order. [Provided that where the Committee of [Principal Commissioners of Customs or Commissioners of Customs] differs in its opinion regarding the appeal against the order of the Commissioner (Appeals), it shall state the point or points on which it differs and make a reference to the jurisdictional [Principal Chief Commissioner of Customs or Chief Commissioner of Customs] who shall, after considering the facts of the order, if is of the opinion that the order passed by the Commissioner (Appeals) is n....
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.... 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 placing the papers before the Principal Chief Commissioner or the Chief Commissioner in terms of Proviso 2 to Section 129A (2) of the Customs Act, 1962, the appeal is not maintainable before this Tribunal as the same is filed by without the mandate of Section 129A (2) of the Customs Act, 1962. 22. Therefore, I hold that the appeal is not maintainable. Sd/ (Ashok Jindal) Member Judicial 23. As both the Members of Bench having a Difference of Opinion, the Registry is directed to place the papers before the Hon'ble President to constitute a Bench of the Third Member to resolve the fo....
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.... 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 Revenue. 3. Hence, the first submissions were made by the Ld.AR for the department. The summary of the submissions are as under:- (1) This Appeal has been filed by the Revenue after proper Review Order which has been duly signed by both the Commissioners in the Committee of Commissioners. Therefore, he submits that this is a proper Appeal filed by the Revenue and the Tribunal is required to consider the merits of the case alone and is not required to go into the internal workings of the Commissionerate while filing this Appeal. (2) He submits that in the process of filing Appeal several consultative discussions took place within the Commissionerate and when there are mo....
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....n 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 only by the Commissioner (Port), but also by the other officials including the Joint Commissioner (Prev.) and other officials as can be seen from the note sheets. He submits that when the Commissioner (Port) has given a remark 'O-in-A dated 17.07.2009 may be accepted', it will clearly convey that he has come to a conclusion that the O-I-A is to be accepted and no further Appeal is required to be filed. He submits that after this, the file was sent to the Office of the Commissioner (Prev.) on 11.02.2010. The Commissioner (Prev.) has sought more details. So as to analyze the order he has called for the case file from the Customs House. After this, several exchanges have taken place between the Office of the Commissione....
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....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 with their application for condonation of delay. On 12.12.2011, the Bench directed the Department to file an Affidavit by the Commissioner on or before 19.12.2011, whereupon the Commissioner (Port) has filed his Notarized Affidavit on 13.12.2011. This Affidavit gives the chronology of list of events pertaining to this file. The chronological details given as index have been reproduced at Page No.2 & 3 of the Interim Order No.1/2024 dated 09.02.2024. Hence, I am not repeating the same. Point No.5 of this Table states as under :- "5. Acceptance of the proposal by Commissioner (Port) - 09.02.2010" [Emphasis supplied] 12. On going through the Notarized Affidavit I find that at Para (1) (e), the Deponent Commissioner (Port), h....
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....ed 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 09.02.2010, the Commissioner (Port) has only indicated his opinion that the Order-in-Appeal dated 27.07.2009 may be accepted. 17. There is one more reason to take this view. When he has indicated that "the Order-in-Appeal dated 27.07.2009 may be accepted", is it a case that if assuming the Commissioner of Customs (Preventive) also had signed the same, whether it will still be a case of just an opinion and will require to be signed as "Final Acceptance". I do not think this is required to be done. Or can he take a different view of filing the Appeal since the earlier signature was not final? I do not think that either of these acts could have been taken after his approval/acceptance on 09.02.2010. Therefore, though the Commissioner (Port) has used the words "may be accepted", a conjoint reading of the earlier paragraph....
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......................................................... (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 proper, direct the proper officer to appeal [on its behalf] to the Appellate Tribunal against such order : Provided that where the Committee of Commissioners of Customs differs in its opinion regarding the appeal against the order of the Commissioner (Appeals), it shall state the point or points on which it differs and make a reference to the jurisdictional [Principal Chief Commissioner of Customs or Chief Commissioner of Customs] who shall, after considering the facts of the order, if is of the opinion that the order passed by the Commissioner (Appeals) is not legal or proper, direct the proper officer to appeal to the Appellate Tribunal against such order. Explanation. - For the purposes of this sub-section, "jurisdictional Chief Commissioner" means the [Principal Chief Commissioner of Customs or Chief Commissioner of Customs] having jurisdiction over th....
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.... 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 submissions only on merits and not to go into the internal Note Sheets of the Revenue Department. As submitted by the Ld. Counsel appearing on behalf of the Respondent, it is seen that after the COD petition was allowed by this Bench, the Appellants have approached the Hon'ble Calcutta High Court wherein while directing the Respondent (Appellant therein), to pursue the matter before the Tribunal, the Hon'ble High Court has also allowed them to make submissions and has given the direction "all the questions asked by the petitioner including the question of maintainability of Appellant for non-compliance of Section 129A (2) of the Customs Act, 1962 should be considered by the Tribunal". Therefore, I do not see any error on the part of the Respondent in raising this issue and the Tribunal considering the same in the course of hearing the Appeal. 27 To summarize my conclusions:- (a) The int....