2008 (10) TMI 367 - HC - Customs

Opportunity of being heard denied - Natural justice - Appeal to Commissioner (Appeals) - Held that - As per Section 128A(1) of the Act the Commissioner (Appeals) shall give an opportunity to the appellant to be heard if he so desires. When the statute itself provides an opportunity of being heard to the appellant the first respondent cannot deny such right and pass the impugned order. Having regard to the facts and circumstances of the case, the order passed by the first respondent in Order-in-Appeal No. 56/2008(V-II)-CUS., dated 22-9-2008 is set aside and the matter is remitted to the first respondent with a direction to decide the matter afresh in accordance with law within a period of four weeks from today after affording an opportunity of being heard to the counsel for petitioner.

Summary

Issues:
Challenge to order-in-appeal regarding differential duty on export of iron ore fines, compliance with principles of natural justice in passing the impugned order.

Analysis:
The writ petition sought to quash an order-in-appeal related to the export of iron ore fines. The petitioner filed a shipping bill for export, paid duty at a concessional rate, and submitted a bank guarantee for the differential duty pending test results. Customs House found the iron content above the threshold, leading to a demand for differential duty. Disputing the analysis report, the petitioner's appeal was initially directed for encashment of the bank guarantee. The petitioner filed multiple writ petitions to halt coercive actions until appeal resolution. The issue revolved around compliance with Section 128A of the Customs Act, ensuring the appellant's right to be heard. The petitioner argued that the first respondent failed to follow the prescribed procedure and denied the opportunity to be heard, despite expressing willingness. In contrast, the respondents claimed to have duly informed the petitioner of the hearing date, asserting compliance with the principles of natural justice.

The Court noted that Section 128A(1) of the Act mandates the Commissioner (Appeals) to provide an opportunity for the appellant to be heard if desired. Considering this statutory provision, the Court held that the first respondent could not disregard the appellant's right to be heard and subsequently pass the impugned order. Consequently, the Court set aside the order-in-appeal and remitted the matter to the first respondent for a fresh decision within four weeks, emphasizing the need to afford the petitioner's counsel an opportunity to be heard. The petitioner's counsel was directed to appear before the first respondent within two weeks, indicating a convenient date for the hearing. The writ petition was disposed of with no costs awarded.