TMI Blog2012 (10) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of Board's Circular for issuance of speaking order by successor officer. As the above aspects were not considered by Commissioner (Appeals) while deciding the appeal. The same are required to be examined - Appeal of revenue allowed by way of remand. - Stay Petition Nos.SP-233, 236 & 240/10 & Appeal Nos.75, 78 & 82/10 - - - Dated:- 25-9-2012 - SHRI S.K. GAULE, AND DR. D.M. MISRA, JJ. Appearance: Shri Sibatosh Chakraborty, Advocate for the Revenue Shri N.K.Chowdhury, Advocate Shri Arijit Chakraborty, Advocate for the Respondent (s) Per Shri S.K. Gaule. 1. Heard both sides. 2. Revenue is in appeal against Order-in-Appeal No.KOL/CUS/CKP/682 TO 691/09 dated 30.12.2009 whereby ld. Commissioner (Appeals) has rejected the review application filed by the department. 3. Briefly stated facts of the case are that the respondents filed various bills of entry for clearance of consignment of old and used worn clothing declaring the value at US $ 0.45 per Kg.. The department enhanced the value to US $ 0.60 per Kg. to which the respondents agreed. The lower adjudicating authority adjudicated the cases on the count of discrepancies in weight, contravention of import p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all these cases, appeals were filed before the Ld. Commissioner (Appeals) intimating the new evidences which had emerged in these cases and praying for setting aside the impugned Orders-in-Original so that fresh show cause notices could be issued in these respective cases as per new evidences to safeguard government revenue. However, the ld. Commissioner (Appeals) in all these cases had dismissed the review applications filed by the Department without discussing the merits of these cases only on the ground that the review proceedings are time barred. Ld.A.R. also submitted that even if assuming but not admitting that the review proceedings in all these three cases are time barred as per the argument of the Ld. Commissioner (Appeals) that the same would be counted from the date of passing of the operative portion of the order of the adjudicating authority in file, the Department is covered by the judgement passed by Hon'ble Tribunal (Larger Bench) in the case of Commissioner of C.Ex., Raipur vs. Monnet Ispat Energy Ltd. as reported in 2010 (257) ELT 239 (Tri.-LB). 4.3 Ld.A.R. submitted that this Tribunal recently vide order dated 28.06.2012 has remanded an Appeal filed by the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of assessment by the earlier adjudicating authority who had adjudged the cases. Review applications before Ld.Commissioner(Appeals) are time barred. The goods were assessed under the bills of entry after enhancing the value from US$ 45 to US$ 0.60 and duty was paid. Order of assessment dated 15.07.2008, 02.07.2008 and 11.07.2008 respectively were duly communicated through EDI System and after examination order from the Committee of Examination. Such assessment orders are undisputedly appealable orders but no appeal was preferred by either side or the order of assessment reached its finality and till date stands proper and valid. Subsequent issuance of purported orders appears in order to avoid the limitation. There is no requirement under law for passing of such purported second order. This is so held by the Hon'ble High Court, Calcutta in the case of M/s. Al Saif International in appeal being CUSTA No.5 of 2011. Under the provisions of section 17(5) of the Customs Act, 1962, the proper officer is required to issue an order when the assessment is in contrary to the claim of the importer and the importer asked for the same. In such occasion also the speaking order of asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Advocate prayed that the appeals filed by the Revenue may kindly be dismissed and the order of the Ld. Commissioner (Appeals) rejecting the review application may kindly be upheld in view of the order of the Hon'ble High Court, Calcutta in the case of M/s. Al Saif International. 6.1 We have carefully considered the submissions and perused the record. The department s case is that DRI has unearthed certain fraudulent mis-declarations by bursting the bails and as such the issue should have been decided on its merits so that the issue could have reached to its logical conclusion. However, the ld.Commissioner(Appeals) had dismissed the appeals as time barred and also cast aspersions on the department for perpetuating fraud without bringing out anything on record. The relevant portion of the order-in-appeal reproduced hereunder:- 12. In all the cases, no doubt Shri S.C. Pal, Additional Commissioner adjudicated the cases but he recorded his findings in just six lines, which have been reproduced in paragraph 8 above. Nothing beyond that has been either been written, dictated or mentioned by him in any of the files. On the other hand, the appraiser Group 3 and Dy. Commissioner Gr.3 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he gist of the orders of adjudication was verbally communicated to the concerned parties representatives at the end of the hearing, by the adjudicating authority, and also by endorsement in the relative bills of entry bearing the endorsement pertain to the fine/penalty imposed by the adjudicating officer, there seems to be no legal objection to the successor in office communicating such order formally to the parties. The case of the department is that for the review purpose the date would be reckoned would be from the date of order passed by the lower adjudicating authority and not the date of assessment of bill of entry. In case the date of passing of order is taken there will not be any delay in case of review order passed under section 129D of Customs Act, 1962. 6.4 We find that so far as para 13 of ld. Commissioner (Appeals) s order wherein it has been recorded that respective importers have already paid the extra duty, fine etc. is concerned, the department has challenged the same and contended that only in the case of one Bill of Entry the respondent has paid the duty and during the hearing of these cases, the respondent could not submit any document contradicting the depar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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