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TMI Blog2016 (12) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 12.10.84 issued stating that if the equipment imported is capable of transmission through carrier lines it is classifiable under CH 85.13 and if the transmission is through wireless classification will be under CH 85.15. 11.3.1985 OIO dated 11.3.85 passed confirming classification under CH 85.15 and demand of Rs. 38,07,255/- was confirmed 13.6.1985 OIA dated 13.06.85 set aside OIO dt. 11.3.1985 and says the following: "I have gone through the case records and have carefully considered the appeal and also the pleas urged during personal hearing. "From the various points raised regarding the Lower Authority's order, I observe that it does suffer from several infirmities. In fact, as the appellant had pointed out even the show cause notice itself is not on a firm ground and does not spell out the grounds a also the reasons for demand or differential duty thus affording the appellants to effectively defend themselves. The lower authority had decided the case in an arbitrary way without meeting the several legal and technical issues raised by the appellants especially when they had placed all the documents, catalogues, etc. right from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case to issue a writ or prohibition to prevent a Court or a Tribunal from proceeding further where the Tribunal has proceeded to act in violation of the rules of natural justice or proceeds to act under law which is itself ultra vires or unconstitutional or proceeds to act in contravention of the fundamental rights. None of these situations indisputably arises in this case. Further, it cannot be disputed that the authority has power to issue show cause notice under section 28 of the Act. The issuance of the show cause notice under Section 28 of the Act contemplates that the petitioners' response shall be considered and only thereafter, have full opportunity to satisfy the authorities. They can bring to the notice of the authority whatever contentions are available to them. Adjudication is yet to take place after written statement is filed by the petitioners and evidence, if any adduced by; them and after hearing the, if the petitioners desire to be heard personally. The show cause notice was issued under Section 28 of the Act, on the grounds mentioned therein. Therefore, the show cause notice issued by the third respondent does not suffer f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imported goods under CH 85.15 - interest was charged u/s, 28AB of Customs Act, 1962. 31.08.2005 The appeal filed against OIO No. 2944/04 dt. 1.10.04 was dismissed in OIA No. C.Cus. 571/2005 dt. 31.08.2005. The appellate order while confirming demand, held that interest is payable only under Section 28AA of the Customs Act, 1962 and not under Section 28AB. 2. Appellant says that when initially classification issue was doubted by the department they should have issued a proper show cause notice to adjudicate the matter in accordance with law. But, they failed to do so. A SCN was issued on 29.5.1984. But, that was unsigned. When the appellant objected to the locus standi of such notice, another signed SCN was issued on 16.6.1984. Thereafter, again on 12.10.1984 a supplementary SCN was issued reiterating the same classification dispute. Adjudication order dated 11.3.1985 was passed disturbing the classification claimed by the appellant holding that the imported goods shall fall under CTH 85.15 instead of CTH 84.35. A demand of Rs. 38,07,255/- was raised. 3. Being aggrieved by the above adjudication order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p; That was disposed on 10.08.2004 quashing the demand raised by the authority in terms of order dated 25.10.1998. Thereafter, the authority again passed an adjudication order on 01.10.2004 on the basis of allegation in the SCN dated 6.8.1985 classifying the imported goods under CTH 85.15 and raised duty demand of Rs.38,07,255/-. Such adjudication order dated 01.10.2004 was subject matter of appeal before the ld. Commissioner (Appeals). He passed the OIA No. C. Cus. 571/2005 dated 31.08.2005 by which the appellant is aggrieved and has come in appeal before Tribunal in the present appeal registered as No. C/528/2005. 5. During the course of argument, learned counsel pointed that initially when the SCN dt. 29.5.1984 was issued that was not authentic without any signature of the authority. When that was objected by the appellant, an authenticated SCN was issued on 16.6.1984. Sequel to that a supplementary SCN was issued on 12.10.1984 unlawfully and in sequence, all illegalities were made by the Authority as narrated in the preceding paragraphs. Therefore, the present impugned order emerging out of proceedings initiated by a fourth SCN dt. 6.8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to grant an opportunity to them to place their point of view. I also direct that while re-examining the goods, the lower authority to make available the evidence if any in the Department's possession to the appellant before deciding the matter"[emphasis supplied]. 10. The above direction of the appellate authority is borne by record. He directed jurisdictional authority to re-adjudicate the matter. Instead of doing so, the Adjudicating Authority created jurisdiction for himself issuing repetitive notices on 6.8.85 and adjudication order dated 01.10.2004 was passed whimsically. Therefore, his order has no basis in law. It is also seen that ld. Commissioner (A) who passed the order dated 31.08.2005 has no regard to his predecessor's appellate order dated 13.06.1985 borne by record awaiting its consequence to be given effect by the Adjudicating authority following judicial discipline. 11. In view of the aforesaid multiple litigations created by Revenue and undesirable hardship caused to the appellant, we direct the adjudicating authority to act as under:- a) He shall hear the appellants as has been directed by the appellate auth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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