Custom, Excise & Service Tax Tribunal
Dy. Commissioner Of ... vs M/S. Knowledge Infrastructure Systems ... on 8 February, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. C/87340/15 [Arising out of Order-in- Appeal No.MUM-CUSTM-PRV-150-15-16 dated 1/7/2015 passed by the Commissioner of Customs(Appeals), Mumbai] For approval and signature: Honble Mr Ramesh Nair, Member(Judicial) =======================================================
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : seen
of the Order?
4. Whether Order is to be circulated to the Departmental: Yes
authorities?
=======================================================
Dy. Commissioner of Customs(Preventive), Alibag Division, M&P Wing, Mumbai :
Appellants VS M/s. Knowledge Infrastructure Systems Pvt Ltd :
Respondent Appearance Shri. D.S. Maan, Asstt. Commissioner(A.R.) for the Appellants Shri. H.K. Sudhakara, Advocate for the Respondent CORAM:
Honble Mr. Ramesh Nair, Member (Judicial)
Date of hearing: 8/2/2016
Date of decision: 8/2/2016
ORDER NO.
Per : Ramesh Nair
This Revenues appeal is directed against Order-in- Appeal No.MUM-CUSTM-PRV-150-15-16 dated 1/7/2015 passed by the Commissioner of Customs(Appeals), Mumbai wherein she passed following order:
7. Considering the above fact, that there is no duty due from the appellant in respect of the impugned Bill of Entry, the refund of the security deposit is held to be admissible subject to due verification of submitted documents and as per legal provisions.
2. In the present case, the Commissioner(Appeals) has directed the Original Adjudicating authority to verify the documents, thus she has not finally decided the appeal but remitted to the original authority. Revenue filed appeal on the ground that the above order is a remand order to the original authority. As per Section 128 A(3) of Customs Act, 1962 the Commissioner (Appeals) has limited power only to confirm, modify and annual the Order-in-Original.
3. Shri. D.S. Maan, Ld. Asstt. Commissioner(A.R.) appearing on behalf of the Revenue appellant reiterating grounds of appeal, submits that as per Section 128A(3) of Customs Act, 1962, the Commissioner(Appeals) has no power to remand the matter whereas she was supposed to decide the matter finally on the basis of records and documents available before her.
4. Shri. H.K. Sudhakara, Ld Counsel for the respondent submits that Ld. Commissioner (Appeals) only directed to verify documents, which in any case sanctioning authority supposed to do the verification therefore the order of the Commissioner(Appeals) is not the remand order therefore ground raised by the Revenue in their appeal cannot be accepted.
5. I have carefully considered the submissions made by both sides.
6. In the Original order the refund was sanctioned and was credited to the Consumer Welfare fund therefore the limited issue before the Commissioner(Appeals) was to decide the aspect of unjust enrichment. The respondent submitted the documents before the Commissioner(Appeals). The Commissioner(Appeals) has no power to remand the matter whereas she could decide the appeal finally on the basis of documents placed before her. I am therefore of the considered view that issue of unjust enrichment can be decide by the Commissioner(Appeals) on the basis of documents produced before the Commissioner(Appeals). I therefore set aside the impugned order and remand the matter to the Commissioner(Appeals) for deciding the appeal finally only on the issue of unjust enrichment. Appeal is disposed of by way of remand to Commissioner(Appeals). Needless to say that the Revenue as well as assessee may be given sufficient opportunity of hearing before the deciding the case. Ld. Commissioner (Appeals) is expected to dispose of the matter preferably within a period of two months from the receipt of this order.
(Dictated in court) Ramesh Nair Member (Judicial) sk 2 C/87340/15