2014 (8) TMI 245 - AT - Customs

Appealable order - Order for auction of goods - Order communicated by way of letter - to whether the referred letter of Asst. Commissioner can be considered as an order, against which appeal can be preferred before the Tribunal - Held that - On a conjoint reading of the statutory provisions contained in Sections 129A and 2(1) of the Act, it would transpire that the order passed or decision taken by the Commissioner of Customs in the capacity of an adjudicating authority, can only be contested before the Tribunal. In other words, for ascertaining as to whether a communication or a letter can be construed as an appealable order, the real test to be applied, firstly is that whether there is a duty cast on the Commissioner to decide judicially; and the second requirement is that the Commissioner should decide the matter judicially and the decision requires communication to the aggrieved party. The impugned letter dated 05.12.2013 of the Asst. Commissioner of Customs cannot be considered as an appealable order for filing appeal before this Tribunal in terms of Section 129A(1) of the Customs Act, 1962 - Decided against the assessee. Validity of Auction - violation of IPR of the assessee - Held that - parallel imports are allowed and therefore there is no violation of Intellectual Property Rights(Imported Goods) Enforcement Rules, 2007 and the department is free to proceed with the e-auction. - once the goods have been confiscated the Government has become the owner as per the provisions of Customs Act with which we are concerned. It would not be appropriate to sit in appeal against the decision to auction the goods by the Commissioner unless it is shown that it is in violation of provisions of Customs Act. We also find that the appellant was given a copy of the Circular No. 13/12-Cus dated 8th May 2012 wherein after referring to the nodal Ministry of UOI, and obtaining clarification, the parallel imports are permitted and appellant was informed that parallel imports are permitted and therefore their request not to auction the goods cannot be accepted. - Decided against assessee.

Summary

Issues:
1. Whether a letter from the Assistant Commissioner of Customs can be considered as an appealable order before the Tribunal?
2. Whether the decision to auction confiscated goods by the Commissioner of Customs can be challenged before the Tribunal?

Issue 1:
The appellant appealed against a letter from the Assistant Commissioner of Customs regarding participation in an E-auction of watches. The appellant argued that since the decision was made by the Commissioner of Customs and conveyed through the Assistant Commissioner, it should be considered an appealable order. However, the respondent objected, stating that only decisions or orders by the Commissioner of Customs as an adjudicating authority can be appealed before the Tribunal. The Tribunal analyzed the Customs Act and concluded that for an order to be appealable, it must be passed by the Commissioner of Customs in an adjudicating capacity and communicated to the aggrieved party after due process. In this case, as the decision by the Commissioner of Customs was not communicated to the appellant and no adjudication order was issued, the letter from the Assistant Commissioner did not qualify as an appealable order under the Act.

Issue 2:
The appellant also challenged the decision to auction confiscated goods by the Commissioner of Customs, citing violations of Intellectual Property Rights (IPR) rules. The Commissioner had responded to the appellant's concerns, allowing them to inspect the goods and participate in the auction. The Tribunal noted that once goods are confiscated, the government becomes the owner as per the Customs Act. The Tribunal found that challenging the decision to auction the goods would not be appropriate unless it violated the provisions of the Customs Act. Additionally, the appellant was informed about the legality of parallel imports and the permissibility of auctioning the goods. The Tribunal determined that the decision was based on legal provisions and decisions by the nodal Ministry, making it non-appealable before the Tribunal. Therefore, the appeal against the decision to auction the goods was rejected.

This judgment clarifies the distinction between appealable orders under the Customs Act and emphasizes the importance of decisions made by the Commissioner of Customs in an adjudicating capacity. It also highlights the limitations on challenging decisions related to confiscated goods, especially when based on legal provisions and decisions by higher authorities.