2012 (10) TMI 649 - AT - Customs

Fraudulent mis-declarations - Rejection of review application of Department as time barred - date would be reckoned from the date of order passed by the lower adjudicating authority OR date of assessment of bill of entry - Held that - As per para 13 of Commissioner (Appeals) s order wherein it has been recorded that respective importers have already paid the extra duty, fine etc. is concerned, the department has challenged the same and contended that only in the case of one Bill of Entry the respondent has paid the duty and during the hearing of these cases, the respondent could not submit any document contradicting the department s submissions that duties were paid on 9 bill of entries were not paid. So far as the contention of the respondent that the jurisdictional Commissioner on 21.07.2009 has ordered for passing of speaking order and hence, the fact of passing of order was well within the knowledge of the jurisdictional Commissioner at least on 21.07.2009, we find that is not an endorsement for communication to jurisdictional Commissioner, but it is an endorsement of Board s Circular for issuance of speaking order by successor officer. As the above aspects were not considered by Commissioner (Appeals) while deciding the appeal. The same are required to be examined - Appeal of revenue allowed by way of remand.

Issues Involved:
1. Time-barred review applications.
2. Alleged misdeclarations and fraudulent activities by importers.
3. Requirement of a license for importing old and used worn clothing.
4. Validity and timing of the review orders.
5. Payment of extra duty, fine, and penalty by importers.
6. Jurisdiction and authority of issuing fresh show cause notices.

Detailed Analysis:

1. Time-barred Review Applications:
The Revenue's appeal centered on the rejection of their review applications by the Commissioner (Appeals) on the grounds of being time-barred. The Commissioner (Appeals) dismissed the review applications without discussing the merits, citing that the review proceedings were initiated beyond the statutory period. The Revenue argued that the review period should be counted from the date of the formal issuance of orders, not from the date of the operative portion of the adjudicating authority's order.

2. Alleged Misdeclarations and Fraudulent Activities by Importers:
The department discovered significant discrepancies in the import declarations, including misstatements regarding descriptions, quantities, and values. These discrepancies were identified during a re-examination by the Directorate of Revenue Intelligence (DRI), which suggested that the actual quantum of extra duty, fine, and penalty would be significantly higher. The Commissioner (Appeals) was criticized for dismissing these findings without a thorough examination of the merits.

3. Requirement of a License for Importing Old and Used Worn Clothing:
The Revenue contended that according to the Export & Import Policy/Foreign Trade Policy/ITC (HS) Classification, a license was required for importing old and used worn clothing. The importers failed to produce such licenses, which was a critical point in the department's case.

4. Validity and Timing of the Review Orders:
The Revenue argued that the review orders were valid and should be considered from the date of the formal issuance of the adjudicating orders. They cited a Board's letter which allowed the successor officer to communicate such orders formally. The Commissioner (Appeals) dismissed the review applications as time-barred, which the Revenue contested, arguing that the review period should start from the date the orders were formally communicated.

5. Payment of Extra Duty, Fine, and Penalty by Importers:
The Commissioner (Appeals) recorded that the importers had paid the extra duty, fine, and penalty as ordered by the adjudicating authority. However, the Revenue challenged this, stating that only one bill of entry had the duty paid, and the importers could not provide documentation to contradict the department's claim that duties on nine other bills of entry were unpaid.

6. Jurisdiction and Authority of Issuing Fresh Show Cause Notices:
The respondent argued that fresh show cause notices issued by the department were beyond jurisdiction and contrary to the grounds of appeal. They pointed out that the original orders had not been set aside, making the subsequent show cause notices invalid. The Commissioner (Appeals) was directed to re-examine these aspects, considering the Board's Circular and the High Court's decision in the case of M/s. Al Saif International.

Conclusion:
The Tribunal found that the Commissioner (Appeals) did not adequately consider the merits of the department's findings and the procedural aspects related to the timing and communication of the review orders. The Tribunal set aside the Commissioner (Appeals)'s order and remanded the case for a fresh decision, instructing that both parties be allowed to present their documents and arguments. The Tribunal emphasized the need for a reasonable opportunity of hearing for the respondents and directed the Commissioner (Appeals) to examine all relevant aspects thoroughly.

The Tribunal also criticized the Commissioner (Appeals) for making unwarranted comments on the department's actions, highlighting the need for judicial restraint and dignified language in judicial orders. The appeals were allowed by way of remand, and the matter was directed to be re-examined in light of the observations made.

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