9911796707
TMI Blog2001 (10) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of exporting to USSR. However, due to dissolution of USSR and due to adverse market conditions the appellants were unable to comply with the terms of export orders as those orders became unenforceable due to dissolution of USSR. Therefore, in terms of notification No. 133/94-Cus., dated 22-6-94 and in terms of para 9.20 of EXIM policy they made an application to the Deputy Commissioner seeking for destruction of these imported parts which were lying more or less as scrap/waste/remnants in order to facilitate smoother de-bonding of the unit in terms of para 9.20 of EXIM policy which specifically provides that no duty shall be leviable on scrap/waste/remnant in case they are destructed with the terms of the Customs authority. The reason for this action contemplated by the appellants is change in technology due to lapse of time and entire imported material became useless and was required to be treated solely as waste and scrap. Hence they made the application through letter dated 24-12-98 followed by reminder dated 24-2-99 and 19-3-99. The Deputy Commissioner did not take any steps in terms of the application and the provisions of the policy and the notification. However, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not maintainable before him. However, while so holding he dismissed under Section 129(E) of the Customs Act for non-compliance of the terms of the said order in pre-depositing the amounts. Therefore, they filed before the Tribunal Appeal No. C/17/2001. The Tribunal at the time of hearing of the Stay Application No. C/Stay/11/01 remanded the matter for de novo consideration to the Commissioner by Final Order No. 322/01 and Stay Order No. 85/01, dated 28-2-2001 with clear direction that the Commissioner (Appeals) had erred in dismissing the appeal under Section 129(E) and holding that the proceedings before him were not maintainable. The Commissioner (Appeals) was directed to hear and pass an order on the aspect of the jurisdiction. The impugned order has been passed on the aspect of the jurisdiction after giving an opportunity of hearing to the appellants. The findings recorded by him is reproduced : I have gone through the records of the case and the submissions of the appellant carefully. The Hon'ble Tribunal has remanded the case with a direction to decide as to whether Commissioner (Appeals) has powers to entertain the appeal and to pass an interim order on that aspect. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... municate about the rejection of the request in their letters for destruction of imported and indigenous material and to treat the said imported material as scrap/waste. 5. Ld. Sr. Counsel submits that as the original authority the Deputy Commissioner was bound to have issued notice giving reasons as to why their request cannot be complied with and after following the principles of natural justice ought to have adjudicated and that the same not having being done, the entire letter issued by the Deputy Commissioner is non-est and are not as per law. Therefore, the appeal filed by them before the Commissioner (Appeals) challenging his action was sustainable and the Commissioner (Appeals) was not justified in holding that the proceedings had been initiated by the Commissioner of Customs and therefore the order of the Deputy Commissioner is required to be treated as the order passed by the Commissioner of Customs. He contends that the impugned order is not sustainable and the findings recorded that the Commissioner (Appeals) has no jurisdiction is bad in law. He contends that the ld. Commissioner (Appeals) ought to have remanded the matter to the Deputy Commissioner to follow the proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approached the High Court and the High Court directed the appellant to approach this Court. 4. It is, therefore, obvious that the Collector (Appeals) was wrong in asking the appellant to approach the Tribunal against the order of the Assistant Collector passed on 20-3-1992. It is not disputed before us that the appeal lay before the Collector (Appeals) against the said order of the Assistant Collector and the Collector (Appeals) had wrongly directed the appellant to approach the Tribunal against the said order. We, therefore, set aside the impugned order of the Collector (Appeals) dated 31-3-1993 and consequently the orders of Tribunal and the High Court and remand the matter to the Collector (Appeals) and direct him to hear the appeal against the order of the Assistant Collector dated 20-3-1992 according to law. The appeal is allowed accordingly with no order as to costs. 6. He also submits that the order communicated by the Deputy Commissioner as having been the decision of the Commissioner in terms of Section 3A of the Central Excise Act, was held to be violative of principles of natural justice by this Bench in the case of M/s. Triveni Alloys Ltd. v. CCE, Chennai by Final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant by initiating proper proceeding in terms of law. However, the Commissioner's view was communicated by Deputy Commissioner which cannot be considered as a proper order in terms of law. The proceedings of the Deputy Commissioner is not being in terms of law and in the light of the Apex Court judgment rendered in the case of Sheela Foam (P) Ltd. v. U.O.I. (supra), the appeal of the appellant before the Commissioner (Appeals) was maintainable. Therefore, the Commissioner (Appeals) finding that the appeal against the letter of the Deputy Commissioner being not maintainable is not correct in the light of the Apex Court judgment. 9. We have considered the plea that as the entire proceedings of the Deputy Commissioner itself is non-est and not maintainable and therefore the issue is required to be remanded to the original authority for de novo proceedings in terms of law. In this regard the judgment rendered in the case of M/s. Triveni Alloys Ltd. v. CCE by final Order No. 2316/99, dated 10-9-99 is directly applicable to the facts of this case. The findings recorded in para 4 to 7 are reproduced : 4. We have carefully considered the rival submissions and records of the case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for capacity being 7 MTs was rejected and instead much higher capacity of 18 MTs was fixed and further because there was no response from the Revenue on the request for a speaking order, therefore, to this extent the facts are similar. However, we find that this very issue had been considered by this Tribunal in the case of Chamundi Steel Castings (India) Ltd. v. CCE as reported in 1999 (108) E.L.T. 578 (T). A perusal of the said decision shows that the facts of the case are on all fours with the facts of the present case for the following reasons :- (a) the letter/order by which the assessee was aggrieved was not signed by the Commissioner, who alone is the prescribed authority to pass such an order under section 3A(2) of the Act; and (b) there was no discussion regarding the assessee s contention for fixing lower capacity. We find that in the present case, both these facts are exactly identical. We had in our decision in the case of Chamundi Steel Castings (I) Ltd. (supra) held that such an order was a non-speaking order and had therefore, remanded the matter to the original authority namely the concerned Commissioner for de novo consideration, after hearing the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of principles of natural justice. Consequently, he prays for setting aside the same and remanding back the matter to the adjudicating authority and directing him to issue an appropriate show cause notice as to why the galleries be not added along with the chambers and then an adjudication order be passed by him after considering the reply of the appellants. 2. Opposing the contentions, learned Senior Departmental Representative, Shri Satnam Singh submits that it is merely a question of verification of certain parameters and technical data. There is no disput about the technical data verified by the officers. In these circumstances, there is no justification for giving any personal hearing or any show cause notice to be issued because it is merely a verification of technical data. 3. We have considered pleas advanced by both the sides. We are not inclined to agree with the submissions of the learned Senior Departmental Representative. We observe that the appellants herein are contesting the addition of galleries for the purpose of fixing production capacity of stenter even though there is a circular of the Board for addition of the galleries. But the assessee has a right to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
