TMI Blog2008 (1) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... [Order].-1. This is an appeal against the communication of the decision of the Commissioner of Customs (Export), Air Cargo Complex, Sahar, Mumbai 2. Heard both sides. 3.1 Briefly the facts of the case are that M/s Sterlite Optical Technologies Ltd., (hereinafter called the appellant) obtained Advance Licence from the Directorate General of Foreign Trade (DGFT) which permitted the import of fuel on actual user condition against the export of optical fibers manufactured by the appellant. 3.2 The appellant was exporting the product specified, namely, the optical fibers, under Shipping Bills for Advance Licence and was also requesting the DGFT to modify the terms for fixation of the norms for import of fuel under the scheme. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ONER OF CUSTOMS, CHENNAI [2006 (203) E.L.T. 588 (Tri. - Chennai)]. Further one cannot lose sight of the legal position that denial of natural justice, apparent on the face of an order or a communication cannot be taken up by the authority who denied it. The right to agitate is left to the aggrieved and cannot be thrust upon him to his disadvantage. 5.2 Another objection of the department was that the order was not passed by the Commissioner as adjudicating authority. This argument flatly falls when the definition for the adjudicating authority as given in Section 2(1) reads as "adjudicating authority" means any authority competent to pass any order or decision under this Act, but does not include the Board, [Commissioner (Appeals)] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t find any place. 6. Revenue was agitating on another issue that the statutory period of 45 days for filing memorandum of cross-objection was not given to them. It seems the relevant provisions have not been understood in the proper perspective. In fact, the Commissioner of Customs (Exports) filed the document titled "Memorandum of Cross Objection" but strangely it does not agitate against any portion of the impugned order. When the Revenue is fully defending the impugned order, the hue and cry about the opportunity for filing a memorandum of cross objection is misplaced. 7. Revenue cited the non-mentioning of the provisions of the Foreign Trade Policy and the Handbook of Procedure as one of the reasons for the rejection. Para 4.12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Shipping Bill, appellant was requesting the proper officer, to exercise this statutory power vested in such authority, to amend a Shipping Bill. The statutory conditions subject to which such amendment could or could not be made is described in the proviso to Section 149 of the Customs Act, 1962, which reads as : "Provided that no amendment of a bill of entry or a shipping bill or bill of export shall be so authorized to be amended after the imported goods have been cleared for home consumption or deposited in a warehouse, or the export goods have been exported, except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be." It is not in dispute th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nious construction of the various circulars so far issued. The Circulars 74/97 - Cus. dated 30-Dec-1997 and 48/98 - Cus. dated 15-Jul-1998 narrate the various parameters to be looked into for considering the requests for conversions. It would suffice to say that the subordinate authorities are not expected to ignore the tenor of these circulars. 10. The submission of the Revenue that the authorities are given the discretion by law smacks of arrogance. Law, on no count allows any authority to pass unreasoned orders, to communicate it through a simple letter and to later on argue that it was not an appellable order that too depriving the assessee, his legitimate right. The Commissioner ought to have taken up the issue in the right ea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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