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TMI Blog2014 (2) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court’s decision directing the adjudicating authority to give an opportunity of hearing to the applicant, the direction does not end there but equally applicable to the Appeal proceeding also. Therefore it was incumbent upon learned Commissioner (Appeals) to give a reasonable opportunity of hearing to the applicant before passing any order which adversely affect the interest of the applicant. In these circumstances and following the Hon’ble Kolkata High Court’s decision, we set aside the order-in-appeal and remand the case to the learned Commissioner for deciding the issue afresh, after hearing the applicant - Decided in favour of assessee. - C/291/2011 - Final Order No. A/46/KOL/2011 - Dated:- 6-2-2012 - Shri S.K. Gaule and Dr. D.M. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l is rightly filed by them under Section 129A of the Customs Act, 1962 and maintainable. 4. The contention of the applicant is that it filed a complaint with the customs authorities regarding illegal import of diesel engines/generator, agriculture pumps in the brand name of Usha (deceptively similar) by the respondent No. 1. Based on the complaint an alert letter No. 71/2010, dated 23-8-2010 was issued by SIB (Port), Customs House, Kolkata and the applicant was directed to join SIB inspection team for physical examination of the goods on 25-11-2010 at Haldia in case of Bill of Entry No. 572328, dated 22-10-2010 filed by the importer. Consequent to the joint examination, the department asked the applicants to furnish surety and security in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttention to para 16 of learned Commissioner (Appeals) s order. The learned advocate emphatically contended that learned Commissioner (Appeals) had decided their case behind their back without providing them a hearing despite the fact that they were the right holder of the brand name and involved since the time of joint examination of the imported goods and during various other proceedings viz., Show Cause Notice and adjudication order. 7. Ld. advocate appearing for the importer contended that applicant is not aggrieved party in terms of Section 129A of Customs Act, 1962 since it is not the importer of the goods. Further contention of the advocate appearing for the importer is that applicant has registered with the Customs department only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Rules. The contention is that the applicant did not become party on its own, but as per direction in the writ petition filed by the importer they were made the party to the said proceeding. Also in the departmental proceeding namely Show Cause Notice and adjudication order their interest was recognized and applicant was made a party by the department even though they were not importer of the goods. It is submitted that despite all these facts the Commissioner (Appeals) has decided the case without giving any notice for personal hearing. In support of his contention ld. advocate appearing for the applicant placed reliance on Hon ble Bombay High Court s decision in the case of Wall Street Finance Ltd. v. Union of India - 2006 (202) E.L.T. 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of hearing. 11. Undisputedly the applicant was party to the adjudication proceedings and the copy of the adjudication order was also endorsed to it. However the learned Commissioner (Appeals) in para 16 of his order has found as under :- 16. The appellant has been importing the impugned goods with such trade mark for the past 8-9 years. It is only when the appellant approach the Trade Marks authorities for registration of the trade mark, did M/s. Usha International raise objection to it and consequently to the imports of the appellant which then got held up. Thus to hold that the appellant were driven by mala fide motive to encash the goodwill and reputation enjoyed by M/s. Usha International is without any basis. Had it been so, the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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