2013 (11) TMI 1037 - AT - Customs

Maintainability of appeal u/s 129A(1) of Customs Act against Communication made by Commissioner of Customs (Export) - Communication stated that when the case is pending before the Adjudicatory Authority thus the CC had not examined the issue of Import Utilisation certificate Held that - The Communication dated 04.08.2010, the Commissioner of Customs (Exports) refused to issue Import Utilisation Certificate as the matter is pending before the adjudicating authority - it is appropriate that the appellant should approach to the adjudicating authority in de novo proceeding for issuance of the Import Utilisation Certificate there is no reason to interfere with the Communication dated 04.08.2010 of the Commissioner of Customs.

Summary

Issues:
1. Condonation of delay in filing the appeal.
2. Maintainability of appeal against a communication dated 04.08.2010 of the Commissioner of Customs.
3. Request for issuance of Import Utilisation Certificate and its relevance.

Condonation of Delay:
The applicant sought condonation of a 10-day delay in filing the appeal, which was allowed by the Tribunal after finding the reason sufficient for the delay. The appeal was taken up for hearing after considering submissions from both sides.

Maintainability of Appeal:
The Revenue's representative contended that the appeal was not maintainable against the communication dated 04.08.2010 as it was not an order or decision under Section 129A(1) of the Customs Act. The appellant argued that the communication, which refused to issue an Import Utilisation Certificate, constituted an order within the Act. The Tribunal upheld the Revenue's objection, stating that the matter was pending before the adjudicating authority and directed the appellant to approach the adjudicating authority for the certificate.

Request for Import Utilisation Certificate:
The appellant had requested an Import Utilisation Certificate against an Advance Licence, which was refused through the communication dated 04.08.2010. The appellant argued that the certificate was necessary, but the Tribunal found it appropriate for the appellant to seek it during the de novo proceeding before the adjudicating authority. The Tribunal directed the adjudicating authority to consider the appellant's submission regarding the certificate in the de novo proceeding without delving into the case's merits. The appeal was disposed of accordingly, and the COD application was allowed.

This judgment primarily dealt with the condonation of a filing delay, the maintainability of an appeal against a communication from the Commissioner of Customs, and the request for an Import Utilisation Certificate. The Tribunal allowed the condonation of the delay and directed the appellant to approach the adjudicating authority for the certificate, emphasizing that the order was not a determination of the case's merits.