2016 (12) TMI 195 - AT - Customs

Liability of duty - section 28 of the Customs Act, 1962 - crucial date to determine the value of the foreign exchange so as to determine the value of import under section 15 (1) (b) of the said Act - Held that - Law is well settled that question of law can be raised at any stage of the litigation. That was failed to be appreciated by ld. Commissioner (Appeals) and ignored the above question of law to settle. Law is also settled that unless a dispute arises on a issue emanating from the proceeding and such issue was settled by a lower Court and either party to the settlement are aggrieved, a higher Court has no scope to made a judicial review thereof creating & jurisdiction for it. Absence of the decision of the lower authority on the above two issues is an impediment for decision against the order appealed - matter is remitted back to the ld. Commissioner (Appeals), who shall deal with all questions of law arising out of the dispute and hearing defence plea shall pass a reasoned and speaking order. Only upon the issue as to the person liable to duty is determined, the issue of valuation shall be determined. Appellant is entitled to a fair opportunity of hearing - matter on remand. Appeal allowed by way of remand.

Summary

Issues:
- Liability to duty under section 28 of the Customs Act, 1962
- Determination of crucial date for valuing foreign exchange under section 15(1)(b) of the Customs Act, 1962

Analysis:
1. The fundamental issue raised in the judgment pertains to determining the liability to duty under section 28 of the Customs Act, 1962. The Tribunal emphasized the importance of ascertaining the party liable for duty to invoke the said section. Additionally, the judgment raised the question of the crucial date for determining the value of foreign exchange under section 15(1)(b) of the Act.

2. The Revenue opposed the raising of the above questions at the Tribunal stage. However, the Tribunal clarified that the law allows questions of law to be raised at any stage of litigation. It pointed out that the lower authority failed to appreciate the significance of the questions raised, which led to the need for a judicial review.

3. The judgment highlighted that unless a dispute arises from the proceedings and is settled by a lower court, a higher court cannot conduct a judicial review. The absence of a decision by the lower authority on the issues raised was identified as a barrier to making a decision against the appealed order. Therefore, the matter was remitted back to the Commissioner (Appeals) to address all questions of law and provide a reasoned order after considering the defense plea.

4. The Tribunal emphasized that the determination of the person liable for duty must precede the valuation issue. It stressed that the appellant is entitled to a fair hearing and directed that the appeals, which shared similar facts and circumstances, be sent back to the Commissioner (Appeals) for a fresh decision. The judgment highlighted the need for a thorough consideration of all legal aspects before reaching a final decision.

5. In conclusion, the judgment underscored the significance of resolving the issue of liability to duty before addressing valuation matters. It emphasized the right of the appellant to a fair hearing and instructed the lower authority to reexamine the case in light of all legal questions raised during the proceedings.