2023 (7) TMI 322 - AT - Customs

Maintainability of appeal - appeal filed against a communication by the assessing officer seeking clarification from the importer during the course of assessment of bills of entry filed by the appellant and that the assessment is still pending - Revenue contended that as per Section 128 of the Customs Act, 1962 the appeal before Commissioner (Appeals) lies only against any decision or order under this Act. HELD THAT - By giving reasoning the authority under group A of Customs clearly concluded that the appellant s claim for basic customs duty exemption under the said notification DFIA cannot be extended and it was also directed that the bills of entry may be assessed on merits. As per this decision of the assessing officer, the appellant have no option but to forego exemption notification under DFIA scheme for assessment of bills of entry. If the contention of the Commissioner (Appeals) is accepted then in such a case, it shall be prejudicial to the appellant for the reason that as per the decision taken while raising the query, the bills of entry shall invariably be assessed by denying the exemption and the appellant shall be forced to pay duty and thereafter the appellant shall be forced to file appeal before the Commissioner (Appeals). This entire exercise will prejudice the interest of the appellant which is not an intention of the law. To claim the exemption the appellant has no remedy except to file appeal before Commissioner (Appeals). As per the contention of the learned Commissioner (Appeals) this is only a communication and it is not worthy to appeal. Even though it is a communication but decision of denial of exemption has been taken by the assessing officer. After this decision the appellant would not have claimed the exemption therefore the only remedy lies against the said decision is an appeal before Commissioner (Appeals). In the case of M/S. SHREE CHAMUNDA ENTERPRISES VERSUS ADDITIONAL DIRECTOR GENERAL-MUMBAI ADJ. 2020 (10) TMI 1112 - CESTAT MUMBAI the bench considering the maintainability of appeal against a communication, held that Any such determination during the course of adjudication by the adjudicating authority is an order passed by the passed by the adjudicating authority and is within the purview of Section 129A(1)(a) against which the appeal lies to this Tribunal. A similar issue has been considered about the maintainability of the appeal against communication denying conversion of shipping bills against appellant in the case of STERLITE OPTICAL TECHNOLOGIES VERSUS COMMR. OF CUS. (EXP.), ACC, MUMBAI 2008 (1) TMI 166 - CESTAT MUMBAI wherein the Tribunal held that It is strange that after numerous orders have been passed by the various Benches of the Tribunal over a period of number of years on the question of conversion of shipping bills from one scheme to another, the same old question is raked up in a naive manner. The issue is not covered by Chapter X of the Customs Act, 1962 and hence this Tribunal rightfully has the jurisdiction to hear any appeal on the subject. Thus, there are no hesitation to hold that decision taken by the assessing authority is clearly a challengeable decision before the Commissioner (Appeals). However, since the learned Commissioner (Appeals) has not given any findings on merit the matter needs reconsideration by the learned Commissioner (Appeals) on merit without going into maintainability of the appeal before him - the Commissioner (Appeals) has power to decide the appeal on the grounds of appeal made by the appellant and if at all it is required to satisfy himself with other details or documents he may call for the same from the appellant as well as from the department to come to the conclusion about the merit of the case. Appeal allowed by way of remand.

Summary

Issues Involved:
1. Maintainability of the appeal against a communication from the assessing officer.
2. Whether the communication constitutes a "decision" or "order" under Section 128 of the Customs Act, 1962.
3. Reconsideration of the matter on merits by the Commissioner (Appeals).

Summary:

Maintainability of the Appeal:
The appellant challenged the dismissal of their appeal by the Commissioner of Customs (Appeals), who held that the appeal was filed against a mere communication seeking clarification during the assessment of bills of entry, which does not constitute a "decision" or "order" under Section 128 of the Customs Act, 1962. The Commissioner (Appeals) contended that the appeal was not maintainable as the assessment was still pending, and the communication did not convey any conclusive decision.

Constitution of "Decision" or "Order":
The appellant argued that the communication from the assessing officer was a conclusive decision denying the exemption under Notification No. 19/2015-Cus dated 01.04.2015, issued under the DFIA Scheme. The assessing officer had concluded that the appellant could not be extended the benefit of exemption from basic Customs duty and directed that the bills of entry be assessed on merit. The appellant cited several judicial precedents to support their claim that such a decision is challengeable by filing an appeal before the Commissioner (Appeals).

Reconsideration on Merits:
The Tribunal acknowledged that the assessing officer's decision was not merely a query but a clear denial of the exemption, which left the appellant with no option but to forego the exemption. The Tribunal held that the only remedy available to the appellant was to file an appeal before the Commissioner (Appeals). The Tribunal cited various judgments to support this view, emphasizing that any decision or order by which an assessee is aggrieved can be appealed under Section 128(1) of the Customs Act, 1962.

Conclusion:
The Tribunal set aside the impugned order and remanded the matter to the Commissioner (Appeals) for reconsideration on merits, directing that the appeal be decided within four weeks. The Tribunal stressed that the Commissioner (Appeals) should follow the principles of natural justice and decide the appeal on merit without questioning its maintainability.

(Pronounced in the open court on 06.07.2023)