2015 (7) TMI 1091 - AT - Customs

Maintainability - Letter of Assistant Commissioner - Request for cross-examination rejected - No reason for the same communicated - Held that - the letter dated 2-7-2015 signed and issued by the Assistant Commissioner (Adjudication) cannot be considered as decision or order passed by the Commissioner (Customs) as the Adjudicating Authority. Even assuming that the said communication is to be considered as an appealable order yet in view of the fact that the Assistant Commissioner has conveyed the decision of the Commissioner (Customs) but appeal against the said communication is premature in view of the fact that the order of rejection of the request for cross-examination by the Adjudicating Authority has not been passed and communicated to the appellant. Therefore the letter of Assistant Commissioner (Adjudication) is not maintainable. - Early hearing application dismissed

Summary

Issues:
1. Appeal against rejection of request for cross-examination.
2. Maintainability of appeal before the Appellate Tribunal.
3. Premature appeal due to absence of adjudication order.
4. Dismissal of Misc. Application for early hearing.

Analysis:
1. The appellant filed an appeal before the Appellate Tribunal against the rejection of the request for cross-examination by the Adjudicating Authority. The appellant sought out-of-turn hearing along with a stay of the impugned order. The Assistant Commissioner had informed the appellant that the request for cross-examination had been rejected, and the reason would be communicated in the Order-in-Original. The Tribunal considered the communication dated 2-7-2015 as not an appealable order, as it was not passed by the Commissioner (Customs) acting as the Adjudicating Authority. Therefore, the appeal against this communication was deemed premature.

2. The Tribunal referred to Section 129A of the Customs Act, 1962, which governs the filing of appeals before the Appellate Tribunal. It highlighted that the decision or order passed by the Commissioner (Customs) as an Adjudicating Authority can be appealed against. In this case, the communication from the Assistant Commissioner did not constitute a decision or order by the Commissioner (Customs). The Tribunal emphasized that even if the communication was to be considered appealable, the appeal was premature since the rejection order for the cross-examination request had not been passed or communicated to the appellant.

3. Due to the absence of an adjudication order by the Competent Authority under the statute, the appeal against the communication dated 2-7-2015 was deemed not maintainable. The Tribunal concluded that since there was no formal order of rejection of the cross-examination request communicated to the appellant, the appeal filed against the communication was dismissed. The Misc. Application for early hearing of the stay application was also dismissed on the grounds of the appeal's lack of maintainability.

4. In the final order, the Tribunal dismissed the Misc. Application for early hearing of the stay application, emphasizing that the appeal was not maintainable due to the absence of an adjudication order passed by the Competent Authority. The Tribunal clarified that the appeal filed against the communication dated 2-7-2015 was premature and consequently dismissed. The decision was dictated and pronounced in open court.