Custom, Excise & Service Tax Tribunal
M/S Akab Impex vs Commissioner Of Customs, Mumbai I on 1 December, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. C/1119/09 Mum
(Arising out of Order-in-Appeal No. 224/2009/MCH/AC/DBK/2009 dated 24.08.2009 passed by the Commissioner of Customs (Appeals), Mumbai I)
For approval and signature:
Honble Shri Ashok Jindal, 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 : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
M/s Akab Impex
:
Appellant
Versus
Commissioner of Customs, Mumbai I
Respondent
Appearance Shri Bharat Raichandani, Advocate for Appellant Shri B.P. Pereira, JDR for Respondents CORAM:
Shri. Ashok Jindal, Member (Judicial) Date of Hearing : 01.12.10 Date of Decision : 01.12.10 ORDER NO.
The appellant is in appeal against the impugned order wherein their appeal has been dismissed on the ground of limitation.
2. The facts of the case are that the appellant is a small time exporter and are engaged in export of ready made garments. The appellant has filed an application for amendment in the shipping bills which were inadvertently mentioned drawback serial No. 62.02 instead of Serial No. 62.01. The same was considered by the Asst. Commissioner and the rejection of the request was communicated to the appellant on 17.03.2008. Thereafter, the appellant approached the Chief Commissioner of Customs (Exports) and sought his intervention in the matter. Soon after the appellant has received a communication dated 09.04.2008 from the office of the Chief Commissioner of Customs directing them to approach the Commissioner of Customs (Export Promotion) for further follow up action. Thereafter the appellant received a communication from the Asst. Commissioner of Customs (Draw back) dated 20.01.2009 saying that we have already communicated to you by rejecting your request for draw back amount by changing draw back serial number of the said goods from 62.02 to 62.01. Against that communication the appellant preferred an appeal before the Commissioner (Appeals) on 16.03.09, the Commissioner (Appeals) without going into the merits of the case, rejected their appeal on the ground that a communication has already been made with the appellant by rejecting their claim vide letter dated 17.3.08 and the same has not been challenged by the appellant, hence the appeal is not maintainable. Against those findings of the Commissioner (Appeals) the appellant is in appeal before this Tribunal.
3. The learned DR took preliminary objection that this is a case of draw back scheme hence the appeal is not maintainable before this Tribunal.
4. The appellant has challenged the order of Commissioner (Appeals) wherein the Commissioner (Appeals) has held that the appellant has already communicated the rejection of their claim vide letter dated 17.3.08 which has not been challenged by them and, therefore, this appeal is not maintainable. The only point for consideration by this Tribunal is that whether the impugned order is justified which has not been passed on merits. Hence I hold the appeal is maintainable before this Tribunal.
5. The learned Advocate for the appellant submitted that they have received the communication dated 17.03.2008 stating rejection of their claim. Against that letter they approached the Chief Commissioner for a personal hearing before closing of their claim. In pursuant to their request which was considered by the Chief Commissioner of Customs, the appellant was directed to approach the Commissioner of Customs (Export Promotion). Thereafter no communication of personal hearing was received by the appellant from the office of the Commissioner of Customs (Export Promotion). The only communication dated 20.01.2009 received by the appellant as saying the rejection of their claim has already been communicated vide letter 17.03.2008. The learned Advocate fairly admitted that this communication is not an appealable order before the Commissioner (Appeals) but without going into the aspects, the Commissioner (Appeals) has rejected their appeal on some or other ground holding that the same is not maintainable. To support his contention he placed reliance on the decision in the case of Mahindra & Mahindra vs. CCE Mumbai 2005 (186) ELT 216 (Tri. - Mum).
6. On the other hand, the learned DR reiterated the impugned order and submitted that when the appellant has not challenged the communication dated 17.03.2008, he cannot take defence as the impugned order has been passed on some other premises.
7. Heard and considered.
9. The facts of the case are not in dispute. The appellant was communicated of rejection of their claim vide letter dated 17.03.2008. It is also not in dispute that against that letter the appellant approached the Chief Commissioner of Customs for his intervention in the matter. However, after considering the request of the appellant, the Chief Commissioner has directed the appellant to approach the Commissioner of Customs (Export Promotion) to press their claim. It is also not in dispute that no communication for representation of their claim has been received by the appellant from the office of the Commissioner of Customs (Export Promotion). The only communication received by the appellant is rejection of their claim vide letter dated 17.03.08, hence their claim has not to be considered. This order has been challenged by the appellant before the Commissioner (Appeals) as to whether the said communication is appellable or not, it is to be considered by him. In the Mahindra & Mahindra (supra) wherein this Tribunal has held that the letter of communication cannot be considered as an order in adjudication passed by the Commissioner (Appeals). Following the ratio laid down by this Tribunal in the case of Mahindra & Mahindra (supra) I find in this case also the communication received by the appellant vide letter dated 20th January 09 is not an appealable order and rejecting their appeal by Commissioner (Appeals) on some other premise without considering the fact that whether the appeal against the communication dated 20th January 09 is maintainable or not is not correct. With these observations the impugned order is set aside. The matter is sent back to the original adjudicating authority to look afresh in the issue in hand and pass a speaking order after giving a reasonable opportunity of hearing to the appellant to present their case.
10. The appeal is allowed by way of remand.
(Dictated in Court) (Ashok Jindal) Member (Judicial) nsk 5