Custom, Excise & Service Tax Tribunal
M/S. Elegant Fabric vs Cc, Chennai on 10 August, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
C/209/2010 to C/217/2010
(Arising out of Order in Appeal C.Cus. No. 33 to 41 dated 04.01.2010, passed by the Commissioner of Customs (Appeals), Chennai).
For approval and signature
HONBLE SHRI M. VEERAIYAN, TECHNICAL MEMBER
_________________________________________________________
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M/s. Elegant Fabric : Appellant
Vs.
CC, Chennai : Respondent
Appearance Shri S. Krishnanandh, Adv., for the appellant Shri A.B. Niranjan Babu, SDR, for the respondent CORAM SHRI M. VEERAIYAN, TECHNICAL MEMBER Date of hearing : 10.08.2010 Date of decision : 10.08.2010 ORDER No._____________ All these appeals, by the same appellants, are arising out of common order in appeal C.Cus. No. 33 to 41 dated 04.01.2010.
2. Heard both sides.
3. The relevant facts, in brief, are that the appellants imported fabrics and filed nine Bills of Entries on various dates starting from 7.8.09 to 2.9.09, claiming classification under various sub-headings such as 5007.2090, 5210.2190, 5408.2120, 5408.3490, 5408.2110 and 5212.2190. The assessments were completed by the assessing authorities accepting the claims of the appellants with regard to the classification and exemption Notification. The appellants paid the duties as assessed and cleared the consignments. Thereafter, they challenged by filing appeals before the Commissioner (Appeals), the assessment made in the nine Bills of Entries on the ground that they were eligible for the benefit of the Notification No. 30/04-CE dated 09.07.04 as amended. They also submitted before the Commissioner (Appeals) that they could not claim the benefit of the said Notification as they were advised by the service centre of the EDI that the Notification No. 30/04 was not fed into the EDI system. The Commissioner (Appeals) declined to interfere with the assessment order primarily on the ground that the appellants have not made the assessing authorities aware that they were aggrieved over the assessment orders and holding that the channel of appeal would open to them only when the lower authority has decided the case. Hence, the appellants are in appeal before the Tribunal.
4. Ld. Advocate for the appellants submits that as the appellants were informed by the service centre about the absence of Notification No. 30/04-CE dated 09.07.04 in the software used in EDI system, they preferred to file the Bills of Entries without claiming the benefit of Notification No. 30/04, but, promptly filed appeals against the assessment orders, as no refunds would be sanctioned unless assessment orders were challenged. They were indeed aggrieved that they were not able to avail the benefit of Notification No. 30/04-CE dt. 09.07.04. He also submits that the Commissioner (Appeals) could have remanded the matter to the original authority for consideration of their above plea. He also submits that they are eligible for the benefit of the Notification No. 30/04, in the light of the decision of the Tribunal in the case of Mapsa Tapes Pvt. Ltd. Vs. CCE, reported in 2009 (247) ELT 188 (Tri.-Del.).
5. Ld. SDR submits that the assessing authority has accepted all the claims as made by them in the Bills of Entries relating to classification and the exemptions. That being the case, they cannot be considered as an aggrieved person before the original authority as they have not been denied any benefit which they claimed. They have not also asked for any speaking order. They have not produced any evidence of taking up the matter with the competent authority regarding the alleged omission in the EDI system.
6. I have carefully considered the submissions from both sides and perused the records. At the outset, it is to be noted that any person aggrieved by any decision or order passed under the Customs Act by an officer of Customs lower in rank than Commissioner (Customs) may file appeal to the Commissioner (Appeals). The appeal can be filed against any decision or order. The appellants are claiming that they were eligible for the benefit of Notification No. 30/04 and the same was not extended by the assessing authority and therefore, they filed the appeals before the Commissioner (Appeals) promptly. This claim has to be considered in the light of alternatives available to the appellants. No doubt, the appellants could have asked for a speaking order from the assessing authorities. They could have also sought for refund of allegedly excess paid duty under Section 27 of the Customs Act. At this juncture, it is relevant to note the submission of the Ld. Advocate that even if they had filed the refund claim, the same would not have been sanctioned unless they filed appeals against the assessment orders in the light of the decision of the Honble Supreme Court in the case of Priya Blue Industries Ltd. Vs. CC reported in 2004 (172) ELT 146 (S.C.). Further, the submission that the claim for benefit of exemption Notification can be made at any stage as held by the Honble Supreme Court in the case of Share Medical Care Vs. UOI reported in 2007 (209) ELT 321 (S.C.), deserves to be appreciated. Therefore, the decision of the Commissioner (Appeals) that the appellants failed to inform the assessing authority that they were aggrieved over the assessment orders and therefore channel of appeal was not open to them is not legal and proper. It is also noticed that the claim for benefit of Notification No. 30/04 has not been examined by the original authority (as it was not claimed before him) and also by the Commissioner (Appeals). In view of the above, I hold that it is appropriate that the matter goes back to the jurisdictional Assistant Commissioner/Dy. Commissioner for considering the plea of the appellants for the benefit of the Notification.
7. To enable the same, I set aside the orders of the Commissioner (Appeals) and allow the appeals by way of remand and direct the jurisdictional Assistant Commissioner/ Dy. Commissioner to issue a speaking order, after granting reasonable opportunity of hearing to the appellants. It is clarified that no opinion has been expressed by the Tribunal on the applicability of the Notification to the impugned consignments.
8. The appeals are disposed of as above.
(Order dictated pronounced in the open Court) (M. VEERAIYAN) TECHNICAL MEMBER BB 6