Custom, Excise & Service Tax Tribunal
Principal Commissioner, Customs -New ... vs Wynk Limited on 10 January, 2024
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH, COURT NO. 1
CUSTOMS APPEAL NO. 54836 OF 2023
[Arising out of Order-in-Appeal No. CC(A) Cus/D-I/Import/NCH/4775-
4776/2022-23 dated 03.11.2022 passed by the Commissioner of Customs
(Appeals) New Delhi]
PRINCIPAL COMMISSIONER, CUSTOMS -
Appellant
NEW DELHI (ACC IMPORT)
ACC (Import) Commissionerate
New Customs House,
New Delhi-110037
VERSUS
M/S WYNK LIMITED Respondent
Plot No. 16, Udyog Vihar, Phase IV Gurugram, Haryana-122015 AND CUSTOMS APPEAL NO. 54837 OF 2023 [Arising out of Order-in-Appeal No. CC(A) Cus/D-I/Import/NCH/4775- 4776/2022-23 dated 03.11.2022 passed by the Commissioner of Customs (Appeals), New Delhi] PRINCIPAL COMMISSIONER OF CUSTOMS, ACC (IMPORT) COMMISSIONERATE, Appellant NEW CUSTOMS HOUSE, NEW DELHI-110037 VERSUS M/S WYNK LIMITED Respondent Plot No. 16, Udyog Vihar, Phase IV Gurugram, Haryana-122015 Appearance:
Present for the Appellant : Shri M R Dhania, Authorised Representative Present for the Respondent: Shri Nikhil Gupta and Shri Rochit Abhishek Advocates CORAM:
HON'BLE MR. JUSTICE DILIP GUPTA, PRESIDENT HON'BLE MR. P. V. SUBBA RAO, MEMBER ( TECHNICAL ) FINAL ORDER NOS. 50102-50103 /2024 2 Date of Hearing/Decision: 10/01/2024 JUSTICE DILIP GUPTA This appeal is directed against the order dated 31.10.2022 passed by the Commissioner (Appeals) by which the two appeals filed by the respondent herein against the assessment of Bills of Entry, both dated 16.12.2019, have been allowed and the classification of the goods have been amended.
2. A perusal of the aforesaid order passed by the Commissioner (Appeals) reveals that in both the appeals filed before the Commissioner (Appeals), delay condonation applications had been filed but without deciding the delay condonation applications, the Commissioner (Appeals) allowed the appeals on merit. It is only after the delay is condoned that the Commissioner (Appeals) could have heard the appeal on merits. The order would, therefore, have to be set aside.
3. What also transpires from the order passed by the Commissioner (Appeals) is that a finding has been recorded in paragraph 5.1 that "nothing has been submitted by the respondent department". There is no finding in the impugned order that notice was ever sent to the department about the date on which the appeal would be heard. The Commissioner (Appeals) has, therefore, passed the order without hearing the department. It goes without saying that the Commissioner (Appeals) was required to hear both the appellant and the department before deciding the appeal. This is an essential requirement of the principles of natural justice.
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4. The order passed by the Commissioner (Appeals), therefore, stands vitiated on this ground also.
5. Though these two grounds were not raised by the appellant in the grounds of appeal, but the learned authorized representative appearing for the department was permitted to raise these grounds by the Bench by granting permission under rule 10 of Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982.
6. Thus, the order dated 31.10.2022 passed by the Commissioner (Appeals) deciding the two appeals filed by the respondent herein deserves to be set aside and is set aside. The Commissioner (Appeals) shall now decide the delay condonation applications, after providing adequate opportunity to both the parties, and then, if necessary, decide the appeal on merits. The appeals are allowed to the extent indicated above.
(Dictated and pronounced in open court) (JUSTICE DILIP GUPTA) PRESIDENT (P. V. SUBBA RAO) MEMBER ( TECHNICAL ) Tejo