Customs, Excise and Gold Tribunal - Mumbai
Archana Impex vs Commissioner Of Customs on 9 August, 2002
Equivalent citations: 2002(145)ELT657(TRI-MUMBAI)
ORDER Gowri Shankar, Member (T)
1. The appellants before us are either partnership firms or individuals. The common notice issued to them alleged that goods imported by Century 21st Hi-Tech Industries Ltd. was brass scrap against 10 advance licences and cleared by it without payment of duty in terms of exemption contained in Notification 203/92 had been sold by it to 26 firms. It therefore proposed to recover duty from the importer, proposed penalty on it, its director and on the alleged buyers of the product and the custom house agent who was concerned with the clearance of the goods.
2. The notice was made answerable to the Commissioner of Customs at Kandla. This Commissioner, however, did not pass any orders on the matter. The seven hearings that were scheduled by him were all adjourned for one reason or another. Subsequently, by order dated 24-8-2000, the Chief Commissioner of Customs at Ahmedabad passed orders directing the Commissioner of Customs at Ahmedabad to adjudicate upon the notice. The order passed by this authority, confirming the demand and imposing penalties is in appeal before us.
3. The contention of Mr. L.P. Asthana, counsel for Century 21st HiTech Industries Ltd., Ravindra Rastogi and Sanjay Kumar, is that they were not given an opportunity of being heard. He had, in his letter dated 28-9-2000, requested for adjournment on the ground that he was busy with the matter in the Tribunal at Delhi, and indicated a few dates in future which would be convenient. The Commissioner, however, did not accept this request and went on to adjudicate upon the notice and passed ex parte orders. He therefore contends that the matter has been passed without the appellants represented by him.
4. The departmental representative attempts to answer this point by saying that the Commissioner of Customs at Kandla had adjourned the matter on seven occasions. We are not able to see how this justified the Commissioner at Ahmedabad not granting a single adjournment. The Commissioner at Kandla was no doubt of the view that these adjournments were merited; otherwise he would not have granted them. The Commissioner at Kandla would perhaps have been justified in refusing an eighth adjournment on his view that sufficient opportunity had been given. However the Commissioner at Kandla ceased to have done anything to do with the matter after 23-8-2000 when the Chief Commissioner passed this order. Even if he had partially heard the matter, the persons who were issued notice would have been within their rights in asking the Commissioner at Ahmedabad to hear them once again. We are therefore really concerned with the one adjournment that the Commissioner at Ahmedabad refused this appellant. We are of the view that the reason advanced for the adjournment, that the counsel was busy with the Tribunal in a matter which was already fixed, was not preverse or unacceptable not to have been granted. We therefore think that these appellants before us should be given an opportunity by the Commissioner of being heard.
5. The departmental representative then points out that the other 27 appellants had been heard by the Commissioner at Kandla and there is no justification in their matters to go back for adjudication. This is a somewhat simplistic view. The demand for duty flows out of the findings of the Commissioner that the goods imported under the exemption had been sold (to 26 persons) and therefore could not have been utilised for fulfilment of export obligation. The contention of the importer before us is that the goods had in fact been utilised in the manufacture of the export products which has been exported either in complete or partial fulfilment of export obligation with regard to 10 licences. The Commissioner has not considered this plea. If after considering it he finds it acceptable, he would then have to conclude that there was no sale of the imported material. The other persons would then not be liable to penalty. To put it in other words, the liabilities of the parties who were given notice or interconnected and it would not be possible to sever the proceeds as between the importers and the others. Therefore we think that these appeals ought to be allowed and the matters remanded.
6. When the stay application was heard, the appellants had sought to rely upon the decision of the Tribunal in Consolidated Enterprises v. CC -(Appeals C/1041, 1042/99) [2001 (137) E.L.T. 1223 (T)] in support of the proposition that, when the notice was made answerable to the Commissioner at Kandla, the Commissioner at Ahmedabad could not adjudicate upon their notice because the transfer ordered by the Chief Commissioner was without authority of law. It was only the Central Government which was competent to transfer a matter for adjudication under Section 4 of the Act. It was today put to the parties that the bench might not find it possible to agree with the view expressed in that decision. Today, all the counsels for the appellants stated that they would not raise this issue of jurisdiction before the Commissioner at Ahmedabad to whom the matter would have to be remanded.
7. Having regard to the amount of time that has expired in the matter, we would like the Commissioner to adjudicate upon the matter without undue delay, noting the assurances given by the counsels for the appellants that they will not unnecessarily seek adjournment and will co-operate in the expeditious disposal of the matter.
8. The appeals are allowed on these terms and the impugned order set aside.