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TMI Blog2024 (12) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... ity, it was no less so for the first appellate authority to venture upon a decision on merit of assessment by the original authority. There is a finding, such as it is and without scrutiny of the entry made under section 46 of Customs Act that there was no dissonance with the assessment. That the assessment which emerged was not the claim preferred in the entry and that consent of the importer had not been obtained for such alteration should have been cause for alarm in the first appellate authority. Affirmation of re-assessment without any material to go by invalidates it ab initio. The lack thereof should have prompted the first appellate authority to enforce compliance with consequence of revision. Not having done so invalidates the impugned order. The impugned orders set aside and the bills of entry restored before the original authority for disposal in the manner set out in section 17 of Customs Act - These appeals are allowed by way of remand. - C/86032/2023, C/86033/2023, C/86034/2023, C/86035/2023, C/86036/2023, C/86037/2023, C/86038/2023, C/86039/2023, C/86040/2023, C/86041/2023, C/86042/2023, C/86043/2023, C/86044/2023, C/86045/2023, C/86046/2023, C/86047/2023, C/86048/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C/86231/2023 MR DILIP GUPTA, PRESIDENT AND MR C.J. MATHEW, MEMBER (TECHNICAL) Shri T Vishwanthan, Shri Akhilesh Kangsia and Ms. Madhura Khandekar and Shri Siddharth Sen, Advocates for the Appellant Shri Priyesh Bheda, Joint Commissioner (AR) for the Respondent ORDER M/s Mahle Anand Thermal Systems Pvt Ltd [the appellant], aggrieved by affirmation of charging of anti-dumping duty (ADD) under section 9A of Customs Tariff Act, 1975 [the Customs Tariff Act] on aluminium strip (use in evaporator) (for automotive heat exchanger) imported by them against 188 bills of entry between 14th December 2021 and 10th October 2022 and assessed to rate of duty both basic customs duty (BCD) and integrated tax (IGST) corresponding, according to threshold of thickness, to tariff item 7606 1200 and tariff item 7607 1991 of First Schedule to Customs Tariff Act is before us impugning order [Order-in-appeal no. PUN-CT-APPII-RKD-000-227 to 232-22-33 dated 16th March 2023] of Commissioner of Central Excise (Appeals -II), Pune which disposed off six appeals on merit without the benefit of reasoning that prompted the proper officer to burden them with duties that were not intended by law. The appellant herein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls of Entry by the respondent Customs authority is correct or not. In this context, 1 do not find any error apparent in the assessment of impugned goods and there is no ambiguity in the applicability of the said Notification No. 68/2021-Customs (ADD) dated 06-12-2021. and limiting the findings to validity of the impugned notification. 2. Learned Counsel for appellant submitted that, in the absence of speaking order mandated by section 17(5) of Customs Act, 1962 [the Customs Act], the relief sought by them be granted for which reliance was placed on the decision of the Tribunal in Commissioner of Customs (Preventive), Jodhpur vs. Shiv Ganesh Exim Pvt Ltd [2024-TIOL-854-CESTAT-DEL]. It was further submitted that the finding in the impugned order of clearance of the goods, proceeding from circumstances of having taken a commercial decision, notwithstanding burden of disputed duty, owing to pressing need, without contest was incorrect inasmuch as the protest lodged at the time of discharge of duty liability was noted by the first appellate authority and that statutory mandate required each such re-assessment to be justified on every occasion. Reliance was placed on the decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by way of appeal of Revenue. The first appellate authority was as bereft, as we continue to be, of any material on record, to determine that the exercise of re-assessment conformed to the framework of the notification issued under section 9A of Customs Tariff Act. And just as it would be inappropriate for us to adjudge free floating attempt at determination on the part of the first appellate authority, it was no less so for the first appellate authority to venture upon a decision on merit of assessment by the original authority. 6. That the appellant herein had, in the bills of entry, preferred claim for assessment solely to basic customs duty (BCD) and integrated tax (IGST) is not in dispute; such entered in the check list , upon discharge of duty liability, is transformed as assessed bill of entry for clearance from customs control under section 47 of Customs Act. From a comparison of some of the sets of documents, it is seen that the revision occurred between filing of bill of entry and the conclusion of assessment under section 17 of Customs Act and all this while, except by foregoing, albeit temporarily, release of goods, the importer is under the absolute power of proper of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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