2023 (3) TMI 700 - AT - Customs

Direct appeal to Tribunal bypassing the appellate remedy before Commissioner (Appeals) - provisional release of goods - exorbitant amount of bank guarantee which is five times of the differential duty, is imposed by the adjudicating authority - classification of goods - Optical PLC Splitter - to be classified under chapter sub-heading 8517 79 90 as claimed by the appellant, or to be classified, as proposed by the Department under 8517 62 90 of Customs Tariff Act, 1975 - HELD THAT - The appellant ought to have filed appeal before the learned Commissioner(Appeals), instead of approaching this Tribunal directly. However, in the interest of justice, we therefore direct the appellant to approach the learned Commissioner(Appeals), if so advised and the learned Commissioner(Appeals) would consider to condone the delay of the period consumed before this Tribunal in pursuing the remedy, if the appeal before him is filed by the appellant within a reasonable period. Appeal disposed off.

Summary

Issues:
1. Maintainability of the appeal before the forum.
2. Adjudicating authority for the provisional release of goods.
3. Correct forum for filing the appeal.

Analysis:
1. The appellant filed a miscellaneous application seeking early hearing of the appeal due to the classification dispute of goods seized by the Department under the Customs Tariff Act, 1975. The appellant argued for early hearing to avoid heavy warehousing charges as the goods were a live consignment. The Revenue raised a preliminary objection on the maintainability of the appeal, stating that the order for provisional release was passed by the Additional Commissioner of Customs, making the appeal fall under the jurisdiction of the Commissioner of Customs (Appeals) as per Section 128A of the Customs Act, 1962.

2. The advocate for the appellant referred to a Circular stating that the power of adjudication is vested with the Commissioner of Customs based on financial limits. However, during the proceedings, the adjudicating authority responsible for fixing the value of goods and the bank guarantee amount for provisional release was not identified. The Tribunal, after hearing arguments on maintainability, decided to dispose of the appeal directly instead of allowing the miscellaneous application and adjourning the matter.

3. The Tribunal concluded that the appellant should have filed the appeal before the Commissioner (Appeals) instead of approaching the Tribunal directly. Despite this, in the interest of justice, the Tribunal directed the appellant to approach the Commissioner (Appeals) for filing the appeal within a reasonable period. The Commissioner (Appeals) was instructed to consider condoning the delay caused by pursuing the remedy before the Tribunal. The miscellaneous application and appeal were disposed of accordingly, emphasizing the correct forum for filing the appeal.

This detailed analysis of the judgment highlights the issues of maintainability, adjudicating authority, and the correct forum for filing the appeal, providing a comprehensive understanding of the legal proceedings and the Tribunal's decision.