2021 (8) TMI 698 - AT - Customs

Valuation of imported goods - Mix Hydrocarbon Oil - rejection of declared value - rejection of value based on contemporaneous import prices of Mix Hydrocarbon Oil by other importers from the same country of origin - Time Limitation - HELD THAT - The learned Commissioner (Appeals) has not considered the merit of the assessment and dismissed the appeal as not maintainable. Once the appeal was dismissed as non maintainable no issue on merit stood decided. The present appeal was filed against the impugned order which was passed in the appeal filed against the OIO. Therefore, the appeal before the Commissioner (Appeals) was filed under legitimate right of the appellant. The earlier order dated 04.03.2010 and observation made there will not influence the present proceeding. It is also a fact that the appellant has not filed any appeal before the CESTAT against the Commissioner (Appeals) order dated 04.03.2010 therefore, finding of the Commissioner (Appeals) in the impugned order on this point is baseless. Time Limitation - HELD THAT - The appellant was not given proper opportunity to explain the delay in filing an appeal - the Commissioner (Appeals) is directed to decide the issue of valuation as well as delay afresh, after giving opportunity to the appellant. The appeal is allowed by way of remand to the commissioner (Appeals).

Summary

Issues:
1. Dismissal of appeal by Commissioner (Appeals) on the ground of delay and non-maintainability.
2. Lack of consideration of merit by Commissioner (Appeals).
3. Appellant's failure to file an appeal before CESTAT against Commissioner (Appeals) order.
4. Opportunity to explain delay in filing appeal not provided.

Analysis:

Issue 1: Dismissal of appeal by Commissioner (Appeals)
The appellant filed an appeal against the Order-In-Original (OIO) dated 15.06.2009, regarding the assessment of Bill of Entry. However, the Commissioner (Appeals) dismissed the appeal as non-maintainable on the grounds that the appellant did not challenge the OIO through an appeal under section 128 of the Customs Act. The subsequent appeal filed by the appellant was also dismissed on the basis of delay in filing and the existence of parallel remedies. The Tribunal observed that the dismissal by the Commissioner (Appeals) did not consider the merit of the assessment, and thus, the present appeal was filed within the appellant's legitimate right.

Issue 2: Lack of consideration of merit by Commissioner (Appeals)
The Commissioner (Appeals) failed to delve into the merit of the assessment and instead dismissed the appeal as not maintainable. This lack of consideration on the merits meant that no issue on the assessment was conclusively decided. The Tribunal held that the observations and findings of the Commissioner (Appeals) in the earlier order would not impact the present proceedings, especially since the appellant had not appealed to CESTAT against the Commissioner (Appeals) order.

Issue 3: Failure to file an appeal before CESTAT
The appellant did not file an appeal before CESTAT against the Commissioner (Appeals) order dated 04.03.2010. The Tribunal noted that the Commissioner (Appeals)' finding in the impugned order regarding this point was unfounded, as the appellant's right to appeal to CESTAT remained unexercised.

Issue 4: Opportunity to explain delay not provided
The Tribunal found that the appellant was not given a proper opportunity to explain the delay in filing the appeal. Consequently, the impugned order was set aside, and the Commissioner (Appeals) was directed to reevaluate the issue of valuation and the delay, ensuring a fair opportunity for the appellant to present their case.

In conclusion, the Tribunal allowed the appeal by remanding the case to the Commissioner (Appeals) for a fresh decision, emphasizing the need for a fair consideration of the valuation issue and the delay in filing the appeal.