2016 (6) TMI 345 - HC - Customs

Seeking direction to decide appeal without any further delay - Refund claim - amount appropriated against dues in terms of Detention Notice which are subject matter of appeals before the Commissioner of Customs (Appeals), Kandla and before the CESTAT at Ahmedabad - Held that - merely because the existing position of law is adverse to the revenue, the matter cannot be kept in abeyance till the outcome of some other decision on a similar question of law. In the present case, the appeal preferred by the petitioner relates to the order-in-original passed by the Assistant Commissioner (Refund) and has no relation to the proceedings which are referred to in the affidavit-in-reply filed by the respondents as a ground for not deciding the present appeal. Under the circumstances, merely because of the pendency of such proceedings, the third respondent is not justified in not deciding the appeal preferred by the petitioner. The third respondent is also not justified in transferring the appeal against the Order-in-Original dated 30.05.2013 to the Call Book, despite the fact that it does not fall under any of the categories enumerated in the above circular, and keeping the matter pending for years together causing immense prejudice to the petitioner. Hence, the third respondent is directed to forthwith decide the Appeal without any further delay and not later than three months from the date of receipt of a copy of this judgment, after affording a reasonable opportunity of hearing to the petitioner. - Decided in favour of petitioner

Summary

Issues:
Delay in deciding appeal against Order-in-Original dated 30.05.2013.

Analysis:
The petitioner sought direction to the Commissioner of Customs to decide the appeal without delay. The petitioner, engaged in manufacturing, imported goods and filed a refund claim. The refund was partially sanctioned, and the balance was appropriated against dues. The petitioner appealed the order dated 30.05.2013 and requested a decision due to pending challenges. Despite attending hearings and follow-ups, the appeal remained undecided, leading to the petition seeking relief.

The petitioner's counsel argued that the matter was transferred to the Call Book due to two other proceedings, which did not fall under categories justifying such transfer. The counsel contended that the authority should decide the application despite any pending matters. On the contrary, the respondents' counsel supported the transfer to the Call Book, citing pending appeals and unclear acceptance of previous tribunal decisions. The petitioner's grievance was solely against the delay in deciding the appeal filed in 2013.

The respondents justified the delay by referring to the pendency of an appeal against the order-in-original dated 03.02.2012, leading to the matter being transferred to the Call Book. Circular No.719/35/2003-CX outlined specific categories for transfer to the Call Book, none of which applied to the petitioner's appeal. Each case should be decided independently, irrespective of other pending matters. The court held that the appeal should not be kept pending due to unrelated proceedings, directing the third respondent to decide the appeal within three months, affording a reasonable opportunity for a hearing.

In conclusion, the court allowed the petition, directing the Commissioner to decide the appeal promptly and independently, ensuring no further delays, and providing a fair hearing to the petitioner.