2015 (11) TMI 891 - AT - Customs

Validity of order of the Commissioner (appeals) - It was submitted that, the law says that appellate authority should first determine the issue, next, examine the pleadings of the parties and both the things to be tested by law on the touchstone of evidence to reach to a conclusion. If such a procedure is followed then the decision is said to be rational and shall serve interest of justice. But that is not carried out in the present case. - Section 128A - Held that - It is strange to read the order of the appellate Commissioner in the present case. While in the case decided as above he says that the appeal of the Revenue is frivolous, in the present case he remands the matter on the ground that Chartered Accountant s certificate is not acceptable to him. This clearly shows much emphasis was on only Chartered Accountant s certificate but not on law. It is high time that the authority should be aware of the provisions of law and the judicial pronouncement as well as the safeguard measures granted to the parties to the proceeding by sub-section (4) of section 128A and protest interest of justice thereby. Strangely in the present appeal, appellate authority has not at all examined whether there was eligibility of the appellant to the refund. When the adjudicating authority has transferred the refund to the consumer welfare fund, the appellate authority has not even bothered to examine whether there was really unjust enrichment. - Matter remanded back to the adjudicating authority - Decided in favour of Revenue.

Summary

Issues:
1. Appeal against the order of the Commissioner (Appeals) not going into the facts and provisions of law.
2. Failure of the Commissioner (Appeals) to follow the required procedure in determining the issue.
3. Commissioner (Appeals) relying solely on a Chartered Accountant's certificate without considering the law.
4. Lack of proper examination of eligibility for refund and unjust enrichment by the appellate authority.

Issue 1:
The appeal was made against the Commissioner (Appeals) who did not delve into the facts and provisions of law. The Appellant argued that the Commissioner (Appeals) failed to fulfill the duty of the appellate authority as laid down in section 128A(3) of the Customs Act, 1962. The Appellant contended that the Commissioner (Appeals) should have examined the matter thoroughly, considering the pleadings of both parties and the evidence, to reach a rational decision in the interest of justice.

Issue 2:
The Appellant highlighted that the Commissioner (Appeals) did not follow the required procedure in determining the issue at hand. It was emphasized that the Commissioner (Appeals) should have specified the points for determination, the decision made, and the reasons for the decision as mandated by sub-section (4) of section 128A of the Customs Act, 1962. The Appellant stressed that both sides deserve a fair hearing and an appropriate order in accordance with the law.

Issue 3:
The Revenue contended that the Commissioner (Appeals) relied solely on a Chartered Accountant's certificate without considering the law, leading to a decision that did not address the core issue adequately. The Appellate Tribunal referred to a judgment by the Hon'ble High Court of Madras, emphasizing that a Chartered Accountant's certificate is not conclusive evidence but a basic piece of evidence. The appeal was remanded to the adjudicating authority to allow the respondent a fair opportunity to present its case and apply the law appropriately.

Issue 4:
The Appellate Tribunal noted the lack of proper examination of eligibility for refund and unjust enrichment by the appellate authority. It was observed that the appellate authority did not assess whether the appellant was entitled to the refund or if there was unjust enrichment when the adjudicating authority transferred the refund to the consumer welfare fund. The matter was remitted to the adjudicating authority to ensure a fair hearing based on the evidence on record and to pass an appropriate order considering the pleading, evidence, and applicable law to uphold justice for both sides.