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TMI Blog2023 (7) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... by denying the exemption and the appellant shall be forced to pay duty and thereafter the appellant shall be forced to file appeal before the Commissioner (Appeals). This entire exercise will prejudice the interest of the appellant which is not an intention of the law. To claim the exemption the appellant has no remedy except to file appeal before Commissioner (Appeals). As per the contention of the learned Commissioner (Appeals) this is only a communication and it is not worthy to appeal. Even though it is a communication but decision of denial of exemption has been taken by the assessing officer. After this decision the appellant would not have claimed the exemption therefore the only remedy lies against the said decision is an appeal before Commissioner (Appeals). In the case of M/S. SHREE CHAMUNDA ENTERPRISES VERSUS ADDITIONAL DIRECTOR GENERAL-MUMBAI ADJ. [ 2020 (10) TMI 1112 - CESTAT MUMBAI] the bench considering the maintainability of appeal against a communication, held that Any such determination during the course of adjudication by the adjudicating authority is an order passed by the passed by the adjudicating authority and is within the purview of Section 129A(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at as per Section 128 of the Customs Act, 1962 the appeal before Commissioner (Appeals) lies only against any decision or order under this Act. That, communication submitted by the appellant before him cannot be construed any decision or any order. Hence, he held that the appeal against the said communication is not maintainable and the Commissioner (Appeals) has not decided the matter on merits. This order of the learned Commissioner (Appeals) is challenged by the appellant by filing the present appeal. 2. Shri Hardik Modh, learned Counsel appearing on behalf of the appellant submits that even though it is a communication from the assessing officer but the same is conclusive decision for denial of exemption Notification No. 19/2015-Cus dated 01.04.2015 issued under DFIA Scheme. It is his submission that the assessing officer during the process of assessment clearly concluded that the appellant cannot be extended the benefit of exemption from payment of basic Customs duty and it was also directed that the bills of entry may be assessed on merit. He submits that with this clear decision by the assessing officer, the appellant was denied the benefit of exemption therefore the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessing officer, the appellant have no option but to forego exemption notification under DFIA scheme for assessment of bills of entry. If the contention of the Commissioner (Appeals) is accepted then in such a case, it shall be prejudicial to the appellant for the reason that as per the decision taken while raising the query, the bills of entry shall invariably be assessed by denying the exemption and the appellant shall be forced to pay duty and thereafter the appellant shall be forced to file appeal before the Commissioner (Appeals). This entire exercise will prejudice the interest of the appellant which is not an intention of the law. If the issue on merit about the availability of exemption claimed by the appellant is decided before the assessment of bills of entry particularly when the assessing officer has expressed his clear view about the denial of exemption notification, to challenge such denial of exemption benefit, the only remedy available under the law is filing of appeal before the Commissioner (Appeals). By this means only the ends of justice can be met. 5. We find that to claim the exemption the appellant has no remedy except to file appeal before Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Revenue Learned Authorized Representative submits that the communication is an internal record made by the adjudicating authority during the course of hearing and cannot be considered as an order against which the appeal is maintainable before this Tribunal. Further it is also not forthcoming whether this communication was ever issued to the appellant at any time. Since this communication is not an order of the adjudicating authority referred to in Section 129A of the Customs Act, 1962, the appeal is not maintainable and needs to be dismissed. 3.1 We have considered the entire records of the matter and the arguments made during the course of hearing by both the sides. 3.2 Section 129A(1)(a) of the Customs Act, 1962 reads as follows : Appeals to the Appellate SECTION 129A. Tribunal. Any person aggrieved by any of the - (1) following orders may appeal to the Appellate Tribunal against such order (a) a decision or order passed by the Principal Commissioner of Customs or Commissioner of Customs as an adjudicating authority; 3.3 Undoubtedly in the present case the ADG, Adjudication, DRI, Mumbai, was acting as adjudicating authority, and has made this record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tribunal over a period of number of years on the question of conversion of shipping bills from one scheme to another, the same old question is raked up in a naive manner. The issue is not covered by Chapter X of the Customs Act, 1962 and hence this Tribunal rightfully has the jurisdiction to hear any appeal on the subject. (c) Similar issue was also considered by Chennai bench of this Tribunal in the case of Kiran Pondychem Limited (supra) and passed the following order:- 3 . We have given careful consideration to the submissions. The grievance of the appellants is against refusal of conversion of Free Shipping Bills to Advance Licence Shipping Bills ( DEEC Shipping Bills). The request for such conversion was made to the Commissioner of Customs, but its result was unfavourable. A further representation was made to the Commissioner and its outcome was communicated by the Assistant Commissioner of Customs (Exports) in the Commissioner s office. The AC s letter says that the appropriate authority did not consider the request for conversion of free SBs to DEEC SBs. It indicates that Board s Circular No. 4/2004 dated 16-1-2004 prohibited such conversion. The app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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