TMI Blog2010 (9) TMI 823X X X X Extracts X X X X X X X X Extracts X X X X ..... cks) in terms of said Public Notice for examination of goods in his presence for noting the shortages. Applicant could not produce copy of any such application. It indicates neither any such request was made by applicant nor any shortages were recorded in the duplicate Bill of Entry. Further, whenever any shortages are recorded in duplicate Bill of Entry, the examination report is also recorded in triplicate copy of Bill of Entry. In this case, there is no examination report on the triplicate Bill of Entry. Adjudicating authority has admitted that duplicate Bill of Entry was not available. Therefore there is no documentary evidence certified by customs available on record which can confirm the applicant’s claim of shortages. The CPT letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistered. Therefore the letter dated 20-7-1991 was treated as time-barred and the claim was registered by the Order-in-Original No. S 10(l)-77/91 MCD, dated 23-8-1994. 2.1 An appeal u/s 128 of the Customs Act, 1962 was filed before the Commissioner of Customs (Appeals), who allowed the same by his Order-in-Appeal No. Cal. Cus. 254/95, dated 19-5-1995 with specific direction to process the claim on the basis of ONGC s letter dated 7-6-1991. Though the Assistant Commissioner of Customs, MCD was judicially bound to implement the appellate order of the superior authority but he for reasons, better known to him, neither implemented the order nor filed appeal u/s 129 of the Customs Act, 1962 to CEGAT for years for setting aside this order-in-ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin 45 days from the date of receipt of the order. The AC, MCD again rejected the claim of ONGC admitted by the Commissioner (Appeals) vide his order-in-appeal dated 13-6-2007. 2.4 Perusal of the latest order-in-original No. 4/2007, dated 14-9-2007 will convince any person with reasonable mind that the AC of Customs, MCD has clearly failed to implement the order-in-appeal No. KOL/CUS/CKP/150/207, dated 13-6-2007. Judicial discipline demanded implementation dated 13-6-2007 or filing one appeal against the same before the superior appellate authority i.e. Hon ble Tribunal for setting aside of the subject order-in-appeal dated 13-6-2007 on grounds relevant as per opinion of the Customs House, but such legal step was not taken for reason be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1 That on the facts and in the circumstances of the case ld. Commissioner of Customs (Appeals) erred in deciding the matter on merits and fails to consider facts on record. 3.2 That on the facts and in the circumstances of the case Commissioner of Customs (Appeals) arbitrarily rejected the legitimate claim of Rs. 1,21,822/- of the appellant. 3.3 That on the facts and in the circumstances of the case Commissioner of Customs (Appeals) denied the natural justice to the appellant. 3.4 That on the facts and as per the law Commissioner of Customs (Appeals) failed to consider well settled law that the department cannot claim and retain such amount in exchequer which is not due to the Government. 3.5 The appellant craves to add after or am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal dated 28-2-2006 again rejected the refund claim on the ground that it was not made as per requirement of PN No. 230/86. Applicant again preferred appeal before Commissioner (Appeals) for the second time, who vide order-in-appeal dated 28-6-2006 expressed utmost displeasure for the delay as department kept the claim pending for as long as more than 10 years after the issue of order-in-appeal dated 2-8-1995. It was also pointed out that department failed to disclose and discuss duplicate Bill of Entry where examination report was available which could confirm or otherwise the shortlanding of goods. Since, the said order-in-original dated 28-2-2006 was found non-speaking and violative of direction of order-in-appeal dated 2-8-1995, Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was not done. The adjudicating authority had admitted the non-availability of duplicate Bill of Entry. Since no joint survey was held, the applicant was required to make an application to Assistant Commissioner (Docks) in terms of said Public Notice for examination of goods in his presence for noting the shortages. Applicant could not produce copy of any such application. It indicates neither any such request was made by applicant nor any shortages were recorded in the duplicate Bill of Entry. Further, whenever any shortages are recorded in duplicate Bill of Entry, the examination report is also recorded in triplicate copy of Bill of Entry. In this case, there is no examination report on the triplicate Bill of Entry. Adjudicating auth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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