TaxTMI 
TaxTMI 
2012 (10) TMI 649
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....onfiscated the goods, however redeemed the goods on fine and imposed penalty. The orders passed by lower adjudicating authority were reviewed by Commissioner of Customs (Port), Customs House, Kolkata. Consequently appeal was filed before ld. Commissioner. Ld. Commissioner (Appeals) vide his impugned order rejected the appeal as time barred. Aggrieved by the same Revenue filed the instant appeal. Thereby respondents filed a miscellaneous application before this Tribunal for early hearing. The same were dismissed on the ground that both the authorities below held in favour of the respondent and there is no stay of the impugned order. Aggrieved by the same the respondent filed a Writ Petition before Hon'ble High Court of Calcutta. The Hon ble High Court vide their order dated 11.04.2012 directed this Tribunal to dispose of the appeal. Accordingly the appeals are taken up for disposal. 4.1 Ld. A.R. appearing for the Revenue submitted that in all these cases the respective importers/respondents had filed bills of entry in for import of goods declared as old and used worn clothing . Such goods were being regularly imported by various importers through the port of Kolkata for the past ma....
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....issed by Ld. Commissioner (Appeals) as time barred. In this case also, Ld. Commissioner (Appeals) has not decided these cases on merit the same should be remanded following the earlier order passed by this Tribunal dated 28.06.2012. The contention is that Ld. Commissioner (Appeals) on previous occasions in similar circumstances and on the similar issues had allowed the Department s review applications for setting aside the Order-in-Original passed by lower adjudicating authority on the basis of re-examination reports of DRI, KZU in respect of twenty-nine cases vide Order-in-Appeal No.KOL/CUS/CKP/479-507/2009 dated 28.07.2009 after discussing the merits of these cases so that fresh SCNs could be issued by the DRI. 4.4 Ld.A.R. drew our attention to the findings of the ld.Commissioner(Appeals) in para 13 of the impugned Order-in-Appeal dated 30.12.2009 wherein it has been recorded that respective importers in these cases have already paid the extra duty, fine, penalty etc. as per the orders of the adjudicating authority and contended that this is apparently not correct as is clear at Para 17 (m) in the grounds of Appeal that in case of only one B/E the respondent has paid the duty an....
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....the department with respect to issuance of speaking order by the subsequent officer, has no footing in law inasmuch as the same is neither a notification nor a circular or instruction but merely a communication. The said communication does not confer an indefinite period for passing of speaking order by the subsequent officer even after communication of the order of assessment. Contention of the respondent is that the department has placed reliance upon the earlier orders passed by the Ld. Commissioner (Appeals) allowing with review applications in the similar cases but the said orders are no more in effect inasmuch as the Hon'ble High Court, Calcutta has already set aside such order of Ld. Commissioner (Appeals) as well as order of the Tribunal holding the same. The review orders passed by the Commissioner those similarly situated cases had been quashed by the Hon'ble High Court, Calcutta in the order referred supra. 5.2 Ld.Advocate for the respondent submitted that from para 7 at page 6 of the order of Ld. Commissioner (Appeals) it would be evident that the jurisdictional Commissioner on 21.07.2009 has ordered for passing of speaking order and hence, the fact of passing of order....
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....ed by Shri S.C.Pal. Evidence on record unequivocally indicates that no such impugned orders were ever passed by Shri S.C. Pal, the then Additional Commissioner. In each and every case, these officers have in July and August, 2009, prepared such orders, and have given colour to such orders, including sentences in first person, as if such orders were passed by Shri S.C. Pal. This is nothing but fraud and the impugned orders are nothing bur fabricated orders. I would, however, like to state that these officers did not have any self motive in preparing these orders. They only did so for the larger interest of the Department. No aspersions are cast on them. But as has been held by the Supreme Court and the various courts, Fraud vitiates everything . Therefore, the Review Applications cannot lie against such subsequently prepared orders and the orders which were never in existence at the time Shri S.C. Pal adjudicated the cases. Having coming to know these revealing facts, from the study of these files, I am constrained not to admit such appeals in respect of such of the non-existent and later prepared impugned orders. (Emphasis supplied) 6.2 The above observation of the ld. Commission....