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TMI Blog2024 (8) TMI 1001X X X X Extracts X X X X X X X X Extracts X X X X ..... rove that the imported goods thickness is less than 5.5 microns as declared by them in the bill of entry. Further, the ADD notification supra does not contain any clause with reference to such tolerance level for exemption and therefore she agreed with the department s plea that such tolerance level is applicable only for the purpose of clearance into the Indian market and it not applicable for the purpose of levy of ADD. It is found that the question of a defect of jurisdiction strikes at the very authority of the Proper Officer to pass any order, and such a defect cannot be cured even by consent of parties. The inherent lack of jurisdiction for issue of SCN if found, makes the subsequent order passed by the Authority void in law. The issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... request of the importer a re-test was conducted as provided under CBEC Circular No. 30/2017-Cus dated 18.7.2017 at CRCL, New Delhi. The report as given at para 6 of the OIO, stated the thickness to be 0.006 mm (6 micron). After due process, the original authority confirmed the differential demand of Rs.25,99,374/- under sec. 28(4) along with interest and imposed equal penalty under sec. 114A of the Customs Act, 1962. The goods were confiscated and were allowed to be redeemed on payment of fine of Rs.1,70,000/-. The appellant preferred appeal before Commissioner (Appeals) who vide the impugned order rejected the appeal filed by the appellant. Hence the present appeal. 3. The learned counsel Dr. S. Krishnanandh appeared for the appellant and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... test report as directed by the Hon ble High Court and has rightly come to the conclusion that ADD is payable, hence the appeal may be rejected and the appeal upheld. 4. We have gone carefully through the appeal and have heard the rival parties. We find that the issue relates to a question of fact as to whether the imported goods declared as Aluminium Foil Paper Ultrathin 5 5.5 microns falling under CTH 7607 and originating in or exported from China PR are in the thickness range of 5.5 microns to 80 microns so as to attracts ADD as per Notification No. 23/2017-Customs (ADD) dated 16.5.2017. 5. The goods are declared to be in stock-lot and have been tested thrice. We are concerned with the final test of the goods done as per the directions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken into consideration based on the tolerance limits permitted therein. The Commissioner (Appeals) by rejecting their appeal without even referring to the said email and its contents, has committed a grave error meriting the order to be set aside. 7. We also find that the appellant had taken a fresh plea before the Appellate Authority on the issue that the author of the SCN was not competent to issue the SCN in the light of the judgment of the Hon ble Supreme Court in Canon India Private Ltd Vs Commissioner of Customs - Civil Appeal No. 1827 of 2018, dated 09/03/2021. The Impugned order has examined the issue at para 7 which is reproduced below. 7. As regards the contention of the appellant that exercise of powers under Section 28(4) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olved and merits a remand. 8. It has come to notice that in the Record of Proceedings of the Hon ble Supreme Court, Court No. 1, in R.P. (C) No. 406/2021 in C.A. No. 1827/2018 it has been stated as under; In order to facilitate the submissions before the Bench, it has been agreed that Ms. Charanya Lakshmikumaran, counsel, for the petitioners and Ms. V. Chandrashekara Bharathi, counsel, for the Department, shall act as the nodal counsel. They shall put together a common compilation of the submissions, pleadings, documents and precedents in terms of the Circular dated 3 April 2024 issued for regulating the course of submissions. The compilations together with the written submissions shall be in the electronic form and shall be emailed to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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