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2020 (7) TMI 270 - HC - Customs100% EOU - Debonding of EOU - Commissioner of Customs (Appeals) dismissed the appeal on the ground that, the petitioner had sought to invoke the provisions of Section 35 of the Central Excise Act, 1944 as well as Section 128 of the Customs Act, 1962 and had thereby failed to take recourse to a specific provision - SCN was issued invoking power u/s 28 of the Customs Act, 1962 - time limitation - suppression of facts or not - HELD THAT:- A perusal of Ext.P6 reveals that the order was issued by the third respondent, the Joint Commissioner of Customs. The printed format in which Ext.P6 order is issued indicates that an appeal against the order lies to the Commissioner of Customs. It was in such circumstances that the appeal got to be filed before the fourth respondent. It is true that while filing an appeal, the specific provision under which the appeal is filed should be mentioned. But having accepted the appeal on file and proceeded to hear the appeal on merits, the fourth respondent should not have rejected the appeal on the premise that the provisions quoted therein are vague. Even though the learned Standing Counsel vehemently contended that the fourth respondent had decided the appeal on merits, the findings in Ext.P7 do not support that contention. As far as the legal contention of the notice being time barred is concerned, all that is stated in Ext.P7 is that in the impugned order, the claim of the demand being time barred was found to be not maintainable and certain notifications to hold the appellant liable to duty were cited. This observation in Ext.P7 cannot, under any circumstance, be termed as a finding on merit. That being the case, Ext.P7 is liable to be interfered with. The writ petition is allowed by directing the fourth respondent to consider Appeal No. 92 of 2012 filed by the petitioner afresh and to render a decision on merits.
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