TMI Blog2016 (10) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ld. Commissioner (Appeals) have erred in rejecting the appeal and it is a clear case of failure of his part to exercise jurisdiction. In the interest of justice, I allow these appeals by way of remand to the adjudicating authority with the direction to verify the claim of the appellant and to allow the same after verifying the authenticity of the certificate of Origin. The appellant is also directed to appear before the adjudicating authority with their representation and supporting within a period of 45 days from the date of receipt of the copy of this order and seek an opportunity of hearing - matter remanded - appeal allowed. - Appeal Nos. C/709 & 710/2010-CU [SM] - Final Order No. 70816-70817/2016 - Dated:- 9-9-2016 - Mr. Anil Chou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said notification. The details are give in tabular form as follows: S.N In Appeal No.C/709/2010/CU In Appeal No.C/710/2010/CU 1 Bill of Entry No.2056606 dated 07.05.2010 Bill of Entry No.2055657 dated 06.05.2010 2 Certificate of Origin No.021-10-00023 dated 20.05.2010 Certificate of Origin No.021-10-00065 dated 01.07.2010 3 O/A No. 302/CUS/APPL/NOIDA/ 2010 dated 30.09.2010 O/A No.302/CUS/APPL/NOIDA/ 2010 dated 30.09.2010 The Commissioner(Appeals) dismissed both the appeals as non-maintainable and filed pre-maturely observing that Rule 15 of Customs T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oterminous with that of the adjudicating authority. For this proposition, he relies on the Ruling of the Hon ble Supreme Court in the case of MIL India Ltd. Vs. Commissioner of Central Excise, Noida 2007(210) E.L.T. 188, wherein the Hon ble Supreme Court in para 4 of its order have held as follows: In our view the High Court had erred in holding that the Tribunal could not have examined the question of dutiability, once on merits, the order of the Commissioner (A) dated 22.03.2000 became final. Firstly, one must understand that excisability is a matter of principle. The Tribunal is the highest authority in hierarchy to decide on facts whether the bought out items were dutiable or not. The Tribunal was not bound by the decision of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellate Tribunal under the said Act. In fact, the power of remand by the Commissioner (A) has been taken away by amending Section 35A with effect from 11.05.2001 under the Finance Bill, 2001. Under the Notes to clause 122 of the said Bill it is stated that clause 122 seeks to amend Section 35A so as to withdraw the powers of remand from the Commissioner (A). Thus, he continues to exercise the powers of the adjudicating authority in the matters of assessment. Under Section 35B any person aggrieved by the order of the Commissioner as an adjudicating authority is entitled to move the Tribunal in appeal. Section 35B indicates that the decision or order passed by the Commissioner (A) shall be treated as an order of an adjudicating authority ..... X X X X Extracts X X X X X X X X Extracts X X X X
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