2024 (8) TMI 1001

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....ed order). 2. Brief facts of the case are that the appellant filed Bill of Entry for clearance of 20445 kilograms of 'Aluminium Foil Paper Ultrathin 5 - 5.5 microns' under CTH 76071910 with the declared value of Rs.16,80,981/- and self-assessed the duty payable as Rs.4,29,284/- without Anti-Dumping Duty (ADD). As per Notification No. 23/2017-Customs (ADD) dated 16.5.2017, aluminium foil of thickness in the range of 5.5 microns to 80 microns falling under CTH 7607 attracts ADD if originating in or exported from China. SIIB investigated the case. Samples sent to Customs Laboratory by them elicited report dated 12.6.2018 stating that the thickness of the imported goods was 0.010 to 0.012 mm (10 to 12 microns). However, as per the request of....

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....he samples drawn from the importer's consignment were re-tested for a third time by CRCL, New Delhi. On submission of the test report before the Hon'ble High Court, the Hon'ble Court vide their order dated 03.03.2021, permitted the appellant to raise all contentions before the Appellate Authority in respect of its appeal including reliance on Indian Standard specifications. The Ld. Counsel submitted that the Appellate Authority rejected the appeal filed by them without taking into consideration, certain crucial communications nor even referred to the same, thereby committing a grave error. Hence the appeal. 3.2 The Ld. AR has taken us through the impugned order and stated that the same has been passed taking into consideration th....

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....ns as declared by them in the bill of entry. Further, the ADD notification supra does not contain any clause with reference to such tolerance level for exemption and therefore she agreed with the department's plea that such tolerance level is applicable only for the purpose of clearance into the Indian market and it not applicable for the purpose of levy of ADD. 6. The appellant has stated before us that realizing their mistake, they had post the personal hearing and prior to the issue of the impugned order, sent an Email dated 25.07.2021 enclosing and placing reliance on IS 8970: 1991 (instead of IS 15392:2003) more particularly to paragraph 4.4.3 of the said specifications (with amendments), with a specific request that the said IS Spe....

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....ity, viz. Addl. Commissioner of Customs, Group - 4 which is the concerned authority to assess/re-assess the bill of entry as well. As there is no merit in the appellant's appeal, the appeal is liable to be rejected so is their plea of waiver of demurrage charges." We find that the question of a defect of jurisdiction strikes at the very authority of the Proper Officer to pass any order, and such a defect cannot be cured even by consent of parties. The inherent lack of jurisdiction for issue of SCN if found, makes the subsequent order passed by the Authority void in law. The issue hence merits being disposed of first before any other issue is examined on merits. The discussion in the impugned order is cryptic and would require a more deta....