2018 (8) TMI 498 - AT - Customs

Maintainability of appeal - appeal was dismissed on the ground that the appeals do not lie against a Bill of Entry in terms of Section 128 of the Customs Act, 1962 - Held that - The order of assessment passed under Section 17 of the Customs Act,1962, and the order of clearance passed under Section 47 of the Customs Act, 1962, are quasi-judicial orders under Section 128 of the Customs Act, 1962, which can be set aside only by the competent appellate authority, on an appeal being filed against the same. Import of mobile phones - Concessional rate of CVD (duty of excise) subject to the condition that no cenvat credit has been availed - Held that - As per Sl.No.263A of Notification No.12/2012-C.E. dated 17.03.2012, Excise duty shall be levied at the rate of 1%, subject to the condition that no Cenvat has been availed under Rule 3 or Rule 13 of Cenvat Credit Rules, 2004, in respect of inputs or capital goods used in the manufacture of such goods - In the present case, since mobile phones are imported, the question of availment of Cenvat on the inputs or the capital goods, does not arise. Since the ld.Commissioner (Appeals) has not decided the matter on merit, it would be appropriate to remand the matter to the Commissioner (Appeals) for deciding the matter afresh on merit and to pass an order in accordance with law - appeal allowed by way of remand.

Summary

Issues:
1. Adjudication on the merits of the case by the Commissioner (Appeals)
2. Appealability of Bills of Entry under Section 128 of the Customs Act, 1962
3. Quasi-judicial nature of orders under Sections 17 and 47 of the Customs Act, 1962
4. Interpretation of Section 128 of the Customs Act, 1962
5. Applicability of excise duty exemption under Notification No.12/2012-C.E.
6. Remand of the matter for fresh adjudication by the Commissioner (Appeals)

Analysis:

1. The Tribunal noted that the Commissioner (Appeals) did not adjudicate on the merits of the case but dismissed the appeals stating they do not lie against a Bill of Entry under Section 128 of the Customs Act, 1962. The appellant challenged Bill of Entry No.8523143 and supplementary appeals related to 78 Bills of Entry. The Tribunal emphasized that orders under Sections 17 and 47 of the Customs Act, 1962 are quasi-judicial and can only be set aside by the competent appellate authority upon appeal. The appellant argued that Bills of Entry are appealable orders under Section 128 and cited precedent to support this claim.

2. Regarding the interpretation of Section 128, the Tribunal examined the provision which allows any person aggrieved by a decision or order passed by a customs officer to appeal to the Commissioner (Appeals) within a specified timeframe. The Tribunal also considered the appellant's contention that relief cannot be claimed via duty refund without challenging the Bill of Entry assessment first. The Tribunal highlighted the procedural aspects and requirements for filing appeals under Section 128.

3. The Tribunal delved into the applicability of an excise duty exemption under Notification No.12/2012-C.E., which imposes a 1% levy subject to conditions on Cenvat availed. Since the imported goods in question did not involve Cenvat, the exemption conditions were considered fulfilled. Citing a Supreme Court precedent, the Tribunal clarified that even if exemption was not initially claimed, the appellant could still claim the benefit later.

4. Concluding that the Commissioner (Appeals) did not address the case on its merits, the Tribunal decided to remand the matter for a fresh adjudication. It emphasized the need for the Commissioner (Appeals) to reexamine the case and issue an order in accordance with the law, ensuring the appellants are given a fair hearing. Ultimately, the Tribunal allowed the appeals by remanding the case for further proceedings.

This detailed analysis of the judgment from the Appellate Tribunal CESTAT KOLKATA highlights the key issues addressed, legal interpretations made, and the decision to remand the matter for fresh adjudication by the Commissioner (Appeals).