TaxTMI 
TaxTMI 
2025 (7) TMI 1019
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....ble High Court by its judgment dated 10.3.2010 in Atherton Engineering Co. Pvt. Ltd. v. Union of India, 2010 (256) ELT 358 (Cal), which has not been appealed by any of the parties and has since attained finality? II. Whether the Hon'ble Tribunal failed to appreciate the limited scope of the de-novo adjudication laid down by the Hon'ble High Court in its said judgment dated 10.3.2010 and acted beyond its jurisdiction by restoring findings from a previously quashed decision? II. Whether the Hon'ble Tribunal exceeded its jurisdiction by reopening the issue of classification which had already been finally settled by the Hon'ble High Court, and whether it erred in disregarding the binding nature of the said judgment dated 10.3.2010? V. Whether the Hon'ble Tribunal failed to address the issue of inordinate delay in the conduct of de-novo adjudication proceedings and whether such failure vitiated the impugned order for being in violation of the principles of natural justice? XII. Whether the Hon'ble Tribunal committed an error of law by failing to make any finding on confiscation and redemption fine imposed by the denovo adjudica....
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....proximately as to the rate of duty or the value of the goods. 7. Noting the above finding rendered by the Hon'ble Supreme Court in (supra), the Hon'ble Supreme Court held that when an order of the appellate Tribunal would go beyond inter se disputes between the parties and may affect a large number of cases, such an issue will be one of the general public importance. It has been further held that certain questions raised or arisen may require interpretation of the Constitution. Once such question of general importance alone are required to be decided by the Hon'ble Supreme Court and the very nature of question raised or arisen, the same necessarily has to involve the issue of law going beyond the inter-parties' rights and extending to a clause or category of assessees as a whole. On the facts of the said case (Motorolla), the Hon'ble Supreme Court observed that the only question is as to whether the assessee therein has breached the condition which are imposed by the notification for getting exemption from the payment of customs duty or not and the appeals do not involve any question of law of general public importance which would be applicable to a class or category of assessee....
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....lassified as 'prawn feed', the appropriate head under which it will be classified is Customs Tariff Heading 2309.90 under the Customs Tariff Act, 1975. According to the Customs authorities, it would fall under Chapter Heading 0511.99 and that the imported goods were prawn feed. Further, the Department was of the view that the 'Cysts' had to be incubated under controlled temperature and oxygen and hydrated in hatcheries and after that incubation period one would get an organism known as Nauplii which is food for prawn and according to them, this imported goods have to undergo some processes to become prawn feed and therefore, there was a misdeclaration of goods and the appellant would have to face its consequences. 10. The appellant challenged the order passed by the learned Tribunal by contending that the provisional assessment was made on or about 15.4.1999 but no final assessment was ever made; the show-cause notice was issued on the basis of the provisional assessment; the show cause notice was adjudicated on the basis of the evidence at the time of provisional assessment; the product imported were eggs with a live organism or embryo. This live organism or embryo upon nurturi....
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....hat any product imported and declared as Brine Shrimp Eggs would necessarily have to be classified 'other category' under heading 0511.99. The following reasons were given by the Hon'ble Court to support the above conclusion and it will be beneficial to extract the relevant paragraph of the said order. "11. It should be remembered that the above decision of the Supreme Court is the final decision on the particular consignment in issue between the parties involved in that litigation. I do not read that Supreme Court decision as an authority for the proposition that any product imported and declared as Brine Shrimp eggs would necessarily have to be classified in the 'other category' under the heading 0511 for reasons given by me below 12. It is the categorical case of the writ petitioner that these goods which were imported by them were fertilised eggs They contained embryos or little organisms enclosed within the cysts, which upon incubation in controlled temperature and hydration would become larvae which could be used as prawn feed, it is submitted. 13. If there is an embryo within the egg, then there is a living organism within it Upon such incu....
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....5. I do not agree with the submissions of Mr. R.K. Chowdhury that the order of the Commissioner could not have been passed without assessment. In my opinion, such an order is in the nature of an assessment. But nevertheless, such order has been passed without making available the test report of the provisional assessment to the writ petitioner or by considering any material, whether from the seller's invoice or other materials available from the seller or elsewhere, regarding the exact nature of the goods. The pointed fact of enquiry should have been whether the imported goods contained an embryo or a live organism. This factual enquiry ought to have been made upon notice to the writ petitioner and after giving them an opportunity to counter the evidence of the revenue and to produce his own evidence in support of his contention 16. For those reasons, the order of the tribunal dated 2-3-2006 as well as the order of the Commissioner dated 6-11-2002 are set aside. The Commissioner of Customs (Airport and Administration) is directed to rehear and re-decide the matter in accordance with the above observations within a period of 12 weeks from the communication of this order....
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....the goods which admittedly was not available and also ordering for redemption fine. One more major error committed by the adjudicating authority is to impose penalty on one of the Directors of the appellant, who was no more. This aspect has been specifically pleaded by the appellant before the authority. Though several grounds were raised by the appellant before the learned Tribunal, the learned Tribunal lost sight of the scope of the remand pursuant to the order passed by this court. Despite the fact, it has noted the order passed by this court in paragraph 11.2 of the impugned order. However, the appellant was non-suited on the ground that they never took any stand that Brine Shrimp Eggs would be classified under a particular heading and that eggs without larvae would be classified under a different heading and this observation made by the learned Tribunal in paragraph 13.1 and other paragraphs are not sustainable as it tantamount to sit in judgment over the order passed by this court in the writ petition filed by the appellant when the department had not carried the matter on appeal. It is incumbent upon the department to accept the judgment and all the directions contained t....
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....tter on facts as there a time bound direction given by the learned writ court while allowing the writ petition filed by the appellant. So, this is also one more ground to set aside the adjudication order as well as the order passed by the learned Tribunal. Yet another very important issue which comes to light from the order passed by the Tribunal reported in 2006 (197) ELT 428 (Kolkata) that all along the department had been classifying 'prawn feed' under heading 2309.90 of the Customs Tariff Heading as 'prawn feed' and it is only after a notification issued by the Government reducing the rate of duty, a sudden change of stand has been taken by the department. This is also one more fact which should also enure in favour of the appellant. 17. Thus, for all the above reasons, we are of the clear view that the adjudicating authority while carrying out the de novo proceeding clearly exceeded its jurisdiction and proceeded to re-open a settled issue which could not have been done and this aspect of the matte has not been taken note of by the learned Tribunal in a proper sense which results in perversity in the order passed by the learned Tribunal. 18. For the above reasons, the....