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TMI Blog2025 (2) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... was passed by the Adjudicating Authority without following the principles of natural justice. The Commissioner (Appeals) was duty bound under Section 128A (3) of the Customs Act to refer the matter back to the Adjudicating Authority, with direction for fresh adjudication. The learned Counsel for the appellant has vehemently argued that the Order-In-Original passed by the Adjudicating Authority in which reliance was placed on the Standing Order No. 6/2022 dated 04.07.2022 but such action was manifestly arbitrary, illegal and baseless in as much as the Adjudicating Authority had ignored the fact that the standing order in para 4 had excluded certain category of Bills of Entry including Bills of Entry where the importer is invoking Section 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms Tariff Act, 1975. During the period in dispute, the appellant had imported the goods classified under the aforesaid tariff items and cleared them under 33 bills of entry and paid Social Welfare Charge (SWS) to the tune of Rs. 55,79,044/- on the said goods. 1.1. The goods classified under the tariff item No. 2515 1220 and 6802 2190 of the Customs Tariff Act, 1975 became exempt from the payment of SWS in terms of amendment to Notification No. 11/2018-CUS dated 02.02.2018 vide Notification No. 09/2020-Cus dated 02.02.2020 (Exemption Notification). According to the appellant he had inadvertently paid SWS on the imported goods. Therefore, he filed an application dated 24.06.2023 under Section 149 and Section 154 of the Customs Act, 1962 seek ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A (3) (b), is a discretionary power to be exercised in alternative to the other powers enumerated therein. The conscious use of the word "or" makes the intent of the legislature clear that the Commissioner (Appeals) does have the power to hear the case on merits and accordingly confirm, modify or annul decision or order appealed against, even in case where principles of natural justice have not been followed at the first instance. 2.1. The learned Counsel for the appellant also argued that the exemption from the payment of SWS in terms of the exemption notification is absolute exemption and the Adjudicating Authority ought to have extended the benefit, although the appellant had inadvertently omitted to claim the same. Therefore, when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he person and Section 149 cannot be invoked, is not tenable. 2.5. The learned Counsel for the appellant also cited Dimension Data India Private Limited [2021 (376) ELT 192 (Bom.)] which was affirmed by Hon'ble Supreme Court vide order dated 08.11.2021 in 2022 (379) ELT A39 (S.C.) in which Hon'ble Bombay High Court has held that apart from Section 128 of the Act, the Bill of Entry (or Shipping Bill) can also be amended or modified under the provisions of Section 149 or Section 154 of the Act. Such amendments/ modifications may be carried out after out of charge has been given (or LEO has been granted) and may alter the initial assessment made. 3. The learned Authorized Representative has on the other hand vehemently argued that the Order-I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adras in case of A. M. Ahmad & Co. [2013 (288) ELT 497 (Mad.)] wherein Hon'ble High Court has held that "it is now well settled law that even administrative orders which affects the rights of party can be passed only by following the principles of natural justice". 7.3. In view of the above I am of the considered view that the impugned communication has been passed in violation of the principles of natural justice and hence, the matter needs to be remanded to the said officer. Further, as the impugned communication was passed without raising any query or granting personal hearing to represent their case, the grounds raised in the present Appeal Memorandum have been raised for the first time before the Appellate Authority and the said offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (3) The Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass such order, as he thinks just and proper. (a) confirming, modifying or annulling the decision or order appealed against; or (b) referring the matter back to the adjudicating authority with directions for fresh adjudication or decision, as the case may be, in the following cases, namely: - (i) where an order or decision has been passed without following the principles of natural justice; or (ii) where no order or decision has been passed after re-assessment under Section 17; or (iii) where an order of refund under Section 27 has been issued by crediting the amount to Fund without recording any finding on the evidence produced by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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