Custom, Excise & Service Tax Tribunal
Kcm Appliances Pvt. Ltd vs Commissioner Of Customs on 10 October, 2017
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: C/20367/2017-SM [Arising out of Order-in-Appeal No. COC-CUSTM-000-APP-193-2016-17 dt.29/12/2016 passed by Commissioner of CUSTOMS, COCHIN (Appeal).] KCM Appliances Pvt. Ltd 42/45e Thurakkal Misiri Narukara PO Manjeri MALAPPURAM - 676122 KERALA Appellant(s) Versus Commissioner of Customs Cochin-Cus. CUSTOM HOUSE COCHIN - 682009 KERALA Respondent(s)
Appearance:
Ms. Sandhya Sarvode, Advocate For the Appellant Dr. J. Harish, AR For the Respondent Date of Hearing: 10/10/2017 Date of Decision: 10/10/2017 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No. 22412 / 2017 Per : S.S GARG The present appeal is directed against the impugned order dated 12.1.2017 passed by the Commissioner of Customs (Appeals) whereby the Commissioner of Customs (A) rejected the appeal of the appellant.
2. Briefly the facts of the present case are that the appellants import and clear goods declared as kitchen hood falling under CTH 8146000 imported from Hassino Group Co. Limited, Hongkong. Since the appellant had inadvertently paid excess CVD on Item Nos.5 and 6 of B/E No.2257809 dated 17.8.2015 and item Nos.4 and 5 of B/E 2285034 dated 18.8.2015, the items being kitchen hoods falling under CTH 84146000, they claimed a refund of Rs.2,08,177/- for the same. However, the Appraising Officer (Refunds) vide letter Nos.S18/931/2016-Ref. Cus. dated 24.8.2016 failed to accept the refund claim of the appellant as being premature since there is no order challenging the original assessment. Aggrieved by the Order-in-Original, the appellant filed appeal before the Commissioner (A) who rejected the appeal on the ground that no appealable order has been passed by the original authority.
3. Heard both the parties and perused the records.
4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without considering the material on record and the impugned order is contrary to the binding judicial precedent on the same issue. She further submitted that an appeal against the administrative letter rejecting refund application is maintainable in law. She further submitted that as per Section 128 of the Customs Act, an order passed by a lower in rank than the Commissioner of Customs is an appealable order to the Commissioner (A), therefore the letter rejecting the refund claim by the Appraiser is considered to be an appealable order. In support of her submission, she relied upon the following decisions wherein it has been held that letters determining rights of the parties or likely to affect rights are in the nature of appealable order.
Kancor Ingredients Ltd. vs. CCE, Cochin: 2017 (4) GSTL 240 Racold Thermo Ltd. vs. CCE, Pune: 2012 (27) STR 398 Bhagwati Gases Ltd. vs. CCE, Jaipur: 2008 (226) ELT 468 CCE vs. Maharashtra State Bureau of Text Books Production & Curriculum Research: 2015 (39) STR 235 Hindustan Rubber & Gneral Indus. Vs. CCE: 2010 (259) ELT 596 Wimco Ltd. vs. CCE: 1986 (26) ELT 877 Chief Commissioner, Bangalore vs. TNT India Pvt. Ltd.: 2010 (19) STR 5 (Kar.) CCE vs. Electronic Energy Equipments Pvt. Ltd.: 2007 (215) ELT 424 Miscromax Informatics Ltd. vs. UOI: 2016 (335) ELT 446 (Del.)
5. On the other hand, the learned AR reiterated the findings of the impugned order and submitted that as per Section 128 of the Customs Act, an appeal can only be filed against the order or the decision passed under the Act by an officer of Customs lower in rank than the Commissioner of Customs. He further submitted that the Appraiser Officer is not the proper officer for passing an adjudication order.
6. After considering the submissions of both the parties and perusal of the material on record and various case laws relied upon by the appellants, I am of the considered view that the impugned order passed by the Commissioner (A) is not sustainable in law. In view of various decisions cited supra wherein it has been held that letter demanding the right of the parties or affecting the right of the parties can be appealed against. Further, I also find that in the case of Kancor Ingredients Ltd. (supra), this Tribunal in a similar situation has allowed the appeal of the assessee and remanded the case back to the Commissioner (A) with a direction to decide the appeal on merits by following the principles of natural justice. Similarly, in the present case also, I set aside the impugned order and remand the case back to the Commissioner (A) to decide the appeal on merits after following the principles of natural justice.
7. The present appeal is allowed by way of remand.
(Operative portion of the Order was pronounced in Open Court on 10/10/2017) S.S GARG JUDICIAL MEMBER rv 4