Custom, Excise & Service Tax Tribunal
Commissioner Of Customs, Bangalore-I vs M/S Adithya Birla Nuvo Limited on 4 November, 2013
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No. 26896 / 2013 Appeal(s) Involved: C/520/2008-SM [Arising out of Order-in-Appeal No. 48/2008 dated 31/03/2008 passed by Commissioner of Customs (Appeals), BANGALORE.] Commissioner of Customs, BANGALORE-I Appellant(s) Versus M/s Adithya Birla Nuvo Limited (FORMERLY KNOWN AS M/S.INDIAN RAYON& INDUSTRIES), MADURS GARMENTS DIVISION, 110,4th CROSS,5th BLOCK, KORAMANGALA, BANGALORE KARNATAKA-560095 Respondent(s)
Appearance:
Mr. A.K. Nigam, Addl. Commissioner (AR) For the Appellant None For the Respondent CORAM:
HONBLE SHRI B.S.V. MURTHY, TECHNICAL MEMBER ________________________________________ Date of Hearing: 04/11/2013 Date of Decision: 04/11/2013 Order Per : B.S.V. MURTHY Department filed an appeal against the order allowing refund before the Commissioner (Appeals). However in the meanwhile, department had also challenged the order passed by the Tribunal remanding the matter to the original adjudicating authority. While deciding the appeal filed by Revenue, Honble High Court of Karnataka observed that against the order of the Tribunal which was a remand order, Revenue should present their arguments before the Commissioner (Appeals) and he should decide the issue. In fact, the Honble High Court observed that the appellant (department) would be at liberty to argue on all questions at the time of hearing and that the judgments on which reliance has been placed do not apply to the facts of the case. Honble High Court also observed that in any case, the department would be at liberty to agitate the matter further before the Tribunal in case any adverse order is passed. When the matter was taken up for consideration by Commissioner (Appeals), he observed that the Tribunal order was not stayed by Honble High Court and further, Honble High Court observed that when an adverse order was passed, the department is at liberty to agitate the matter further before the Tribunal and therefore, he upheld the order of the lower authority. He also took the view that he is bound to uphold the order of the lower authority in view of the fact that the Tribunal order has not been stayed and liberty has been given to the department to agitate the matter further before the Tribunal.
2. I am unable to find myself in agreement with the Commissioner (Appeals) in this case. There was no need for staying the order of the Tribunal since the Honble High Court found that order has been implemented and therefore, there was no possibility of staying the order. In these circumstances, Honble High Court passed the directions with liberty to department to press the points before the Commissioner (Appeals) and in case adverse order is passed, liberty is given to the department to agitate the matter before the Tribunal. This would clearly show that Honble High Court did not think or did not conclude that the Tribunal order had attained finality and the lower authority is bound by the same. Honble High Court directed the department to agitate the case before the Commissioner (Appeals). However, the Commissioner (Appeals) has not considered any of the submissions or any of the points filed by Revenue and in fact, there is absolutely no discussion of the issues raised by Revenue in the appeal. In the result, I find that Commissioner (Appeals) has not implemented the decision of Honble High Court in its letter and spirit. In my opinion, the Commissioner (Appeals) should have considered all the points which are considered by the Tribunal and the High Court and the points raised in the appeal filed by Revenue and pass appropriate order.
3. In the result, the impugned order is set aside and the appeal filed by Revenue is allowed and the matter is remanded to the Commissioner (Appeals) for fresh decision on merits after considering all the points which have been raised by Revenue before the Tribunal and before the High Court and in the appeal filed before him. Needles to say that the respondent also should be given opportunity to present their case before the Commissioner (Appeals) decides the matter finally.
(Order dictated and pronounced in open court) (B.S.V. MURTHY) TECHNICAL MEMBER /vc/