Custom, Excise & Service Tax Tribunal
M/S. Indian Organic Chemicals vs Commissioner Of Customs on 29 April, 2009
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
C/AG/98/09 & C/335/02/MAS
[Arising out of Order-in-Appeal No.197/2001 (M-II) dated 13.11.2001 passed by the Commissioner of Central Excise (Appeals), Chennai]
For approval and signature:
Honbe Ms. Jyoti Balasundaram, Vice President
Honble Mr. P. Karthikeyan, Member (Technical)
1. Whether Press Reporters may be allowed to see 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 the Members wish to see the fair copy of
the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
M/s. Indian Organic Chemicals
Appellants
Versus
Commissioner of Customs,
Chennai
Respondent
Appearance:
Sh. R. Raghavan, Adv.
Sh. M. Kannan, Adv.
Shri V.V.Hariharan, JCDR For the Appellants For the Respondent CORAM:
Ms. Jyoti Balasundaram, Vice President Mr. P. Karthikeyan, Member (Technical) Date of hearing : 29.4.2009 Date of decision: 29.4.2009 Final Order No.____________ Per JYOTI BALASUNDARAM The above appeal arises out of the order of the Commissioner (Appeals) who has allowed the appeal of the Revenue against sanction of Rs.5,24,263/- to the importers under Section 27 of the Customs Act, 1962 by directing that refund shall be sanctioned only after it is subjected to test of unjust enrichment.
2. The appellants have filed an application for raising additional ground namely that since the adjudication order was passed by the Assistant Commissioner, it is only the Assistant Commissioner who to be directed to prefer an appeal to the Commissioner (Appeals), in terms of Section 129D(2) of the Customs Act, 1962 while in the present case the Commissioner has directed the Additional Commissioner to prefer an appeal to the Commissioner (Appeals).
3. We are of the view that this ground being a ground should be permitted to be raised and accordingly we allow the application No.AG/98/09 for raising this additional ground.
4. We are of the view, after hearing both sides on the appeal, that the appeal itself can be disposed of on the additional ground allowed to be raised. Section 129D (2) reads as under:-
(2)The [Commissioner of Customs] may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct such authority to apply to the [Commissioner (Appeals)] for the determination of such points arising out of the decision or order as may be specified by the [Commissioner of Customs] in his order.
5. The above provision has been the subject matter of interpretation by the Tribunal in the case of Commissioner of Customs (P), West Bengal Vs. Biswajit Dutta [2002 (150) ELT 105 (Tri. Kolkata)] holding that adjudicating authority to pass order-in-original is to file appeal and that the Commissioner cannot direct any other person to file the appeal. In that case appeal filed by the Assistant Commissioner against order of the Deputy Commissioner was held to have been rightly dismissed as non-maintainable by the Commissioner (Appeals). The same view has been expressed in the case of G. Exporters Vs. Additional Commissioner of Customs, Bangalore [2005 (191) ELT 267 (Tri. Bang)] holding that Assistant Commissioner was wrongly authorized to file appeal before the Commissioner (Appeals) as the authorities who passed the orders was the Additional Commissioner who alone empowered to file appeal before the Commissioner (Appeals) in terms of Section 129D(2) of the Customs Act. In the case of CCE Vs. Maza Cosmetics [2007 (207) ELT 200 (Del)] the Honble High Court of Delhi has held that direction to file appeal against order passed by the Joint Commissioner can be given by the Commissioner only to the adjudicating authority namely Joint Commissioner and not to any other officer, under the pro visions of Section 35E of the Central Excise Act, 1944.
6. In the light of the above decision we uphold the objection of the appellants that no direction could have been given by the Commissioner to Additional Commissioner to file appeal before the Commissioner (Appeals). In this view of the matter, we set aside the impugned order of the Commissioner (Appeals) and allow the appeal.
(Dictated and pronounced in open court)
(P. KARTHIKEYAN) (JYOTI BALASUNDARAM)
MEMBER (T) VICE PRESIDENT
Swamy
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