TMI Blog2014 (8) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... 29A(1) of the Customs Act, 1962 - Decided against the assessee. Validity of Auction - violation of IPR of the assessee - Held that:- parallel imports are allowed and therefore there is no violation of Intellectual Property Rights(Imported Goods) Enforcement Rules, 2007 and the department is free to proceed with the e-auction. - once the goods have been confiscated the Government has become the owner as per the provisions of Customs Act with which we are concerned. It would not be appropriate to sit in appeal against the decision to auction the goods by the Commissioner unless it is shown that it is in violation of provisions of Customs Act. We also find that the appellant was given a copy of the Circular No. 13/12-Cus dated 8th May 2012 wherein after referring to the nodal Ministry of UOI, and obtaining clarification, the parallel imports are permitted and appellant was informed that parallel imports are permitted and therefore their request not to auction the goods cannot be accepted. - Decided against assessee. - C/20325/2014 - Final Order No. 20961/2014 - Dated:- 12-6-2014 - SHRI B.S.V. MURTHY AND SHRI S.K. MOHANTY, JJ. For the Appellant : Shri R. Raghavan, Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Heard the learned counsel for the parties and perused the records. 4.1. Section 129A of the Customs Act, 1962 (for short, 'the Act') provides different types of orders against which appeal can be preferred before the Appellate Tribunal. In clause (a) of the said section, it has been provided that a decision or order passed by the Commissioner of Customs as an adjudicating authority can be appealed against before the Appellate Tribunal. The term adjudicating authority has been defined in sub-section (1) of Section 2 of the Act to mean any authority competent to pass any order or decision under the Act. 4.2. On a conjoint reading of the statutory provisions contained in Sections 129A and 2(1) of the Act, it would transpire that the order passed or decision taken by the Commissioner of Customs in the capacity of an adjudicating authority, can only be contested before the Tribunal. In other words, for ascertaining as to whether a communication or a letter can be construed as an appealable order, the real test to be applied, firstly is that whether there is a duty cast on the Commissioner to decide judicially; and the second requirement is that the Commissioner should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since no decision has been taken or orders passed by the Commissioner of Customs as an adjudicating authority, the decision conveyed by the Asst. Commissioner cannot be interpreted to mean an order for filing appeal before the Appellate Tribunal as per the unambiguous mandates of Section 129A(1) of the Act. 5. The issue involved in the above referred decisions relied upon and cited by the learned Advocate for the appellant, are not at all relevant in the context of the present dispute, which are discussed herein below : 5.1 In the case of K.S. Diesels Ltd. (supra), the collector had passed an adjudication order dated 24.09.1982. However, against the entry in the said order Date of Issue , no date has been shown. As such, the order was communicated to the party by the Asst. Collector of Customs under his signature dated 15.12.1982, which was challenged before the Tribunal. With regard to maintainability of the said order, the Tribunal had recorded the following observations in the order dated 29.07.1983: 15. I have carefully considered the arguments advanced on both sides on the question whether an appeal lies to the Tribunal against the order dated 24/09/19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or filing appeal before this Tribunal in terms of Section 129A(1) of the Customs Act, 1962. As such, we find no merits in the appeal filed by the appellant. Accordingly, both the stay application and the appeal are rejected. 7. Besides the technical ground on which the appeal was to be rejected and rejected as mentioned above, it will be worthwhile to consider whether appellants have case on merits also. The issue as to whether the Customs can dispose of the goods confiscated was taken up by the appellant in their letter dated 22.08.2013. They informed the Commissioner of Customs in this letter that the seized and confiscated watches cannot be auctioned through e-auction by MSTC and they also raised the issue that the importation is in violation of their IPR and in contravention of Intellectual Property Rights (Imported goods) Enforcement Rules 2007. This was considered by the Commissioner and in reply to this letter, appellant was informed to execute a bond with 25% security failing which, goods will be auctioned. This was replied to by the appellants. On 26.08.2013, appellant wrote another detailed letter. They requested the Commissioner that the watches may be given to them o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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