Customs, Excise and Gold Tribunal - Delhi
G.T. Cargo Fittings India (P) Ltd. vs Cc on 3 August, 2004
Equivalent citations: 2005(99)ECC368, 2004(174)ELT319(TRI-DEL)
ORDER P.S. Bajaj, Member (J)
1. In this appeal, the appellants have questioned the validity of the impugned Order-in-Appeal vide which the Commissioner (Appeals) has affirmed the Order-in-Original of the adjudicating authority. The issue raised in this appeal relates to the liability of the appellants to pay supervision charges in terms of Bond B-17 executed by them being an 100% EOU unit. The adjudicating authority had confirmed these charges amounting to Rs. 4,87,134 under Section. 142 of the Customs Act with penalty of Rs. 10,000 under Section 117 of the Customs Act.
2. Ld. Counsel has contended that the Commissioner (Appeals) in the impugned order, has wrongly observed that the order of the adjudicating authority confirming the above said charges were not appealable. He has also contended that even on merits, these supervision charges/cost recovery, charges could not be confirmed against the appellants for want of any evidence to prove that any officer of the Customs/Excise was ever permanently stationed at their warehouse for control and supervision. He has further contended that whenever any officer visited the factory, they paid charges vide TR-6 challans. He also referred to the copies of the challans placed on file by the appellants. The impugned order, according to the counsel, deserves to be set aside.
3. On the other hand, Ld. SDR has reiterated the correctness of the impugned order.
4. I have heard both the sides and gone through the record.
5. The view of the Ld. Commissioner (Appeals) that appeal against the Order-in-Original of the adjudicating authority confirming supervision and cost recovery charges against the appellants was not appealable before him is totally erroneous. The adjudicating authority has passed the order under Section 142 of the Customs Act after adjudicating the show cause notice issued to the appellants for payment of those charges. When the copy of that order was sent to the appellants, it was specified in the format that they could file appeal against that order if they not satisfied, with the same, within 60 days before the Commissioner (Appeals). Therefore, the view of the Ld. Commissioner (Appeals) that no appeal could be filed by the appellants against the Order-in-original before him, is untenable.
6. The Commissioner (Appeals) has, no doubt, referred to the merits of the case also, but on merits also, his view that the appellants are liable to pay the disputed charges i.e. supervision and recovery charges, cannot be legally sustained. No doubt the appellants during the relevant period, which is 2001-2002, were 100% EOU and executed Bond-17 in favour of the department. The relevant conditions of that Bond on the strength of which show-cause was issued to the appellants and the charges have been confirmed against them are No. 8 and 9 which read as under:
"8. The obligors shall provide to the officer of Customs/Excise stationed at the warehouse for control and supervision of the manufacturing process and other operation such amenities as may be specified by the Assistant Commissioner.
9. The obligors shall pay all charges, including pay, allowances, leave and pensionery charges of such officers."
7. From the bare perusal of these conditions, it is evident that the appellants were liable to pay charges including pay, allowances, leave and pensionery charges of such officers who were stationed at their warehouse for control and supervision of the manufacturing process. But there is nothing on the record to prove if any such officer was ever posted/stationed at the warehouse of the appellants by the competent authority. No copy of any order passed in that record, has been brought on file by the department. Even the period for which any officer was posted permanently, had not been disclosed. All these facts are even missing in the show-cause notice itself. All that has been alleged in the show-cause notice that in terms of the above referred two conditions of the Bond, the appellants had failed to pay the supervision and recovery charges. Even in the calculation chart, which was supplied to the appellants alongwith the show-cause notice, no details regarding the officer and the period for which that officer, remained stationed at the warehouse of the appellants, have been given. Only the amount demanded from the appellants has been mentioned. Therefore, obligation under the above detailed conditions of the Bond could not be enforced by the competent authorities against the appellants for payment of the supervisory charges and other charges as detailed in the show-cause notice.
8. Therefore, under these circumstances, the appellants cannot be burdened with the charges as confirmed against them through the impugned order, simply by referring to the conditions 8 and 9 detailed above of their Bond-B-17.
9. In the light of discussion made above, the impugned order is set aside. The appeal of the appellants is allowed with consequential relief, if any, permissible under the law.