2015 (11) TMI 1402 - AT - Customs

Denial of CVD exemption - detention certificate for waiver of demurrage charges for delay - Violation of principle of natural justice - Revenue submits that Commissioner (Appeals) has no powers to direct to issue detention order and also to direct that amount should be recovered from the officials and paid to the respondent-importer as part of the action contemplated in Board s instructions dt. 13.2.2012 and Circular No.42/2001-Cus. dt. 31.7.2001. - Held that - Respondents have filed appeals claiming benefit of exemption notification against Bills of Entry and claimed for detention certificate. Prima facie , we find that Commissioner (Appeals) has passed the present orders without giving any opportunity of hearing from the department s side view whether the department has considered their letter and denied issue of detention certificate. Though respondent claimed benefit of exemption notification, the appellate authority has not decided the main issue on admissibility of exemption notification but only directed the assessing group to issue a speaking order. Instead, he directed the Commissioner of Customs, to forward the case to DG Vigilance for fixing responsibility on the officials - prima facie , the Commissioner (Appeals) order is not in conformity with law - order of Commissioner (Appeals) stayed - Revenue s stay applications are allowed.

Summary

Issues Involved:
Clearance of polyester knitted fabric and polyester coral blankets; Denial of CVD exemption; Authority of Commissioner (Appeals) to issue detention certificate and recover amounts from officials; Delay in assessing goods; Prima facie legality of Commissioner (Appeals) order.

Analysis:

Issue 1: Clearance of Polyester Fabrics
The case involved the clearance of polyester knitted fabric and polyester coral blankets. The respondent filed a Bill of Entry seeking exemption under notification 30/04-CE for CVD. However, CVD was charged without exemption, leading to an appeal to the Commissioner of Customs (Appeals) against the denial of CVD exemption.

Issue 2: Authority of Commissioner (Appeals)
The key contention was whether the Commissioner (Appeals) had the power to direct the issuance of a detention certificate and recover amounts from officials. The Revenue argued that such directives were beyond the Commissioner's scope, while the respondent's advocate cited Board circulars to support the Commissioner's actions.

Issue 3: Delay in Assessment
The respondent highlighted inordinate delays in assessing the goods and requested relief for demurrage charges. The Commissioner (Appeals) directed customs to issue a detention certificate, considering the delay and the plea made by the respondent.

Issue 4: Legality of Commissioner (Appeals) Order
Upon review, the Tribunal found that the Commissioner (Appeals) had not decided on the main issue of exemption notification but had directed the issuance of a speaking order and referred the case to the Vigilance Section. The Tribunal raised concerns about the lack of opportunity for the department's input and the directive to recover amounts from officials without a clear decision on the exemption issue.

Conclusion:
The Tribunal granted a stay on the operation of the impugned orders, noting that the Commissioner (Appeals) had not followed due process and had issued directives without fully deciding on the main issue of exemption notification. The legality of the Commissioner's actions and the authority to issue such directions would be further examined during the appeal hearing.

This detailed analysis covers the issues related to the clearance of polyester fabrics, the authority of the Commissioner (Appeals), delays in assessment, and the legality of the Commissioner's order, providing a comprehensive overview of the judgment.