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Commissioner of Customs (Export) , Chennai Versus M/s. Seven Seas Petroleum Pvt. Ltd.

2015 (11) TMI 891 - CESTAT CHENNAI

Validity of order of the Commissioner (appeals) - It was submitted that, the law says that appellate authority should first determine the issue, next, examine the pleadings of the parties and both the things to be tested by law on the touchstone of evidence to reach to a conclusion. If such a procedure is followed then the decision is said to be rational and shall serve interest of justice. But that is not carried out in the present case. - Section 128A - Held that:- It is strange to read the or .....

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s granted to the parties to the proceeding by sub-section (4) of section 128A and protest interest of justice thereby.

Strangely in the present appeal, appellate authority has not at all examined whether there was eligibility of the appellant to the refund. When the adjudicating authority has transferred the refund to the consumer welfare fund, the appellate authority has not even bothered to examine whether there was really unjust enrichment. - Matter remanded back to the adjudicatin .....

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usion that departmental appeal is frivolous. He forgot that the power of the Commissioner (Appeals) is co-extensive and co-terminus to examine the matter going to the root. 2. According to learned AR, there is provision in law as to the duty of the appellate authority and the manner in which he should act. The law says that appellate authority should first determine the issue, next, examine the pleadings of the parties and both the things to be tested by law on the touchstone of evidence to reac .....

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ng the decision appealed. This process serve the principles of natural justice. 3. It is further submitted by Revenue that bare perusal to order of the Commissioner (Appeals) merely shows that Chartered Accountant s certificate is conclusive irrespective of the fact that law shall decide an issue. Simply by a cryptic order Revenue cannot be thrown at the threshold stating that Revenue appeal is frivolous. There was no reason for his decision recorded to make the order speaking. 4. According to l .....

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is country cannot be casually dealt. Either side may have a case. They deserve a fair hearing and an appropriate order. 5. On the other hand, it is fair submission on behalf of the respondent that if the authority goes to the root of the matter to examine the material evidence on record without insisting for a proforma certificate of a Chartered Accountant, issue can be decided on law and the controversy shall be resolved. 6. Heard both sides and perused the records. 7. Law is well laid down by .....

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o pass a proper order. He should know that a proforma certificate is not requisite of the law but may be an aid. Therefore, the law should apply to the settled facts tested by the evidence. 8. In the result, appeal is remanded to the adjudicating authority setting aside both the orders of the authority below to examine the evidence going to the root of the matter. The authority should not delay to dispose the matter of refund since the matter is already 5 years old. It is expected that the order .....

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