Custom, Excise & Service Tax Tribunal
Commissioner Of Customs (Export), ... vs M/S. Seven Seas Petroleum Pvt. Ltd on 3 November, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
Appeal No. C/40583 & 41755/2013
(Arising out of Order-in-Appeal C. Cus. No.713 & 714/2013 dated 16.5.2013 passed by the Commissioner of Customs (Appeals), Chennai)
Commissioner of Customs (Export), Chennai Appellant
Vs.
M/s. Seven Seas Petroleum Pvt. Ltd. Respondent
Appearance Ms. Indira Sisupal, AC (AR) for the Appellant Dr. S. Krishnanandh, Advocate for the Respondent CORAM Honble Shri D.N. Panda, Judicial Member Date of Hearing / Decision: 03.11.2015 Final Order No. 41499-41500 / 2015 Revenue is in appeal against the order of the Commissioner (Appeals) who has not gone into the gamut of the facts. Provisions of law as well as the pleading of both sides were not recorded by him to reach to the conclusion that departmental appeal is frivolous. He forgot that the power of the Commissioner (Appeals) is co-extensive and co-terminus to examine the matter going to the root.
2. According to learned AR, there is provision in law as to the duty of the appellate authority and the manner in which he should act. The law says that appellate authority should first determine the issue, next, examine the pleadings of the parties and both the things to be tested by law on the touchstone of evidence to reach to a conclusion. If such a procedure is followed then the decision is said to be rational and shall serve interest of justice. But that is not carried out in the present case. Therefore, order of learned Commissioner (Appeals) is not sustainable. The power of the Commissioner (Appeals) is well laid down in section 128A(3) of Customs Act, 1962. That provides wide scope to him to cause enquiry as may be necessary and pass order as he thinks just and proper either confirming, modifying or annulling the decision appealed. This process serve the principles of natural justice.
3. It is further submitted by Revenue that bare perusal to order of the Commissioner (Appeals) merely shows that Chartered Accountants certificate is conclusive irrespective of the fact that law shall decide an issue. Simply by a cryptic order Revenue cannot be thrown at the threshold stating that Revenue appeal is frivolous. There was no reason for his decision recorded to make the order speaking.
4. According to learned AR that it would be relevant that the Commissioner (Appeals) should refer to the duty expected from him as is enumerated in sub-section (4) of section 128A of Customs Act, 1962 which is parimateria to provisions contained in sub-section (4) of section 35A of Central Excise Act, 1944. This requires that the order of the Commissioner (Appeals) should specifically state the points for determination, the decision thereon and reason for the decision. It should be appreciated that Revenue of this country cannot be casually dealt. Either side may have a case. They deserve a fair hearing and an appropriate order.
5. On the other hand, it is fair submission on behalf of the respondent that if the authority goes to the root of the matter to examine the material evidence on record without insisting for a proforma certificate of a Chartered Accountant, issue can be decided on law and the controversy shall be resolved.
6. Heard both sides and perused the records.
7. Law is well laid down by the Honble High Court of Madras in the case of Commissioner of Customs (Exports), Chennai Vs. BPL Ltd. 2010 (259) ELT 526 (Mad.) that certificate of Chartered Accountant is not conclusive evidence but the basic evidence touching the issue decides a issue. Therefore, the appeal is remanded to learned adjudicating authority to grant fair opportunity to the respondent to explain its case as to the entitlement of the refund in question considering its pleading as well as evidence and applying law to pass a proper order. He should know that a proforma certificate is not requisite of the law but may be an aid. Therefore, the law should apply to the settled facts tested by the evidence.
8. In the result, appeal is remanded to the adjudicating authority setting aside both the orders of the authority below to examine the evidence going to the root of the matter. The authority should not delay to dispose the matter of refund since the matter is already 5 years old. It is expected that the order shall be passed by 31.12.2015.
C/41755/2013
9. It is strange to read the order of the appellate Commissioner in the present case. While in the case decided as above he says that the appeal of the Revenue is frivolous, in the present case he remands the matter on the ground that Chartered Accountants certificate is not acceptable to him. This clearly shows much emphasis was on only Chartered Accountants certificate but not on law. It is high time that the authority should be aware of the provisions of law and the judicial pronouncement as well as the safeguard measures granted to the parties to the proceeding by sub-section (4) of section 128A and protest interest of justice thereby.
9.1 Strangely in the present appeal, appellate authority has not at all examined whether there was eligibility of the appellant to the refund. When the adjudicating authority has transferred the refund to the consumer welfare fund, the appellate authority has not even bothered to examine whether there was really unjust enrichment.
9.2 When the adjudication order is examined, para 2 thereof shows that there were adequate material as enumerated therein and depicted as under for examination by both the authorities:-
(a) Original Bills of Entry
(b) Original duty paid TR6 Challans
(c) Sales Invoice
(d) Copies of payment of VAT challans When the materials as above were before the authorities the question of unjust enrichment could have been well decided without sending the parties from pillar to post.
10. Without dilating the matter further, this matter is also remitted to the adjudicating authority to grant fair hearing to the respondent on the basis of evidence on record as has been recorded in para 2 of the adjudication order and pass appropriate order considering the pleading and evidence as well as the law applicable. Reason being heartbeat of justice that should not be given goby.
11. In the result, this appeal is also remanded to the adjudicating authority to do justice to both sides.
(Dictated and pronounced in open court) (D.N. Panda) Judicial Member Rex 3