2018 (9) TMI 513 - HC - Customs

Maintainability of petition - alternative remedy - remand of the case - Held that - The respondent herein could not have relied on and even referred to the order, dated 29-12-2004, but what was expected of him was to take an independent decision in the matter based on the documents placed by the petitioner, after hearing the assessee. This, having not been done, the impugned order calls for interference. It is made clear that this Court has not gone into the merits of the matter and the correctness of the impugned order has been examined only on the above grounds. The matter is remanded to the respondent for fresh consideration, who shall take an independent decision in the matter, uninfluenced by any of the earlier orders and the decision of the respondent should be a speaking order - Petition allowed by way of remand.

Summary

Issues:
Challenge to order-in-original, Maintainability of Writ Petition

Analysis:

The petitioner challenged an order-in-original passed by the respondent, which was appealable to the Commissioner of Customs (Appeals). The Court questioned the maintainability of the Writ Petition since an appeal lied with the Commissioner of Customs (Appeals). The petitioner's counsel highlighted events since 2004, leading the Court to entertain the Writ Petition based on the materials on record.

The order dated 29-12-2004 by the Joint Commissioner of Customs found the petitioner and the supplier in Japan related, applying a 250% loading on imported goods' values. The petitioner's appeal to the Commissioner of Customs (Appeals) was rejected, leading to an appeal to the Customs, Excise and Service Tax Appellate Tribunal (CESTAT). CESTAT criticized the lack of natural justice in the Joint Commissioner's order and remanded the matter for fresh consideration.

Upon remand, the Additional Commissioner of Customs favored the petitioner, but the Commissioner (Appeals) set aside the order for reconsideration. However, the respondent erred in not considering the observations made by the Commissioner (Appeals) and instead relied on the original order dated 29-12-2004, leading to a flawed decision. The Court intervened due to this error, emphasizing the need for an independent decision based on the petitioner's documents and a hearing.

The Court allowed the Writ Petition, setting aside the impugned order and remanding the matter for fresh consideration by the respondent. The decision should be independent, uninfluenced by previous orders, and supported by a speaking order after considering the petitioner's documents and hearing their representative. No costs were awarded in this matter.