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TMI Blog2017 (11) TMI 846X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017 With Special Civil Application No. 15667 of 2017 To Special Civil Application No. 15669 of 2017 For The Petitioner : Mr Paritosh Gupta With Mr Paresh M Dave, Advocate For The Respondent : Mr Dhaval D Vyas, Advocate ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. Special Civil Application No. 5755 of 2017 is treated as lead matter. Petitioners are importers of mixed fabric. They have imported mixed lot of 100% polyester knitted fabrics at Mundra Port. Dispute between the petitioners and the department pertains to the transaction value of the imports. In the past also, similar disputes had arisen in terms of section 14 of the Customs Act, 1962 read with the Customs Valuation [Determination of Value of Imported Goods] Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge of Rs. 152 to 250 per k.g. These orders, the petitioners have challenged in these petitions. Their main ground is that when an identical issue has been decided by the appellate authority in favour of the importers, the adjudicating authority could not have taken a different view. They strongly rely on the decisions of this Court and the Supreme Court holding that as quasi judicial authority, the adjudicating officer is bound by the judgement of the appellate authority. As long as such appellate orders stand, the adjudicating authority cannot take a different view. This is the main ground on which the petitioners seeks to by-pass the remedy of statutory appeals. 3. The department, however, strongly contends that the fresh orders which ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly contended that in certain cases, the authority has substituted the declared valuation without any hearing being granted to the importers. 5. On the other hand, learned advocates Mr. Vyas and Shah for the department opposed the petitions contending that in view of statutory appeals available, these petitions should not be entertained. In any case, the appeal would lie before the Supreme Court against the judgement of CESTAT. The authorities had fresh material permitting a fresh decision on merits. 6. The group of petitions can be divided in three parts. In first category of cases, where after notice, the adjudicating authority relied on the instances not previously relied upon and referred to and adopted a transaction value higher than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate order under identical circumstances, the petitioners would have been justified in urging us to exercise writ jurisdiction. In the present case, however, we prima facie find that the appellate orders were primarily based on the fact that the adjudicating authority in those cases had compared the two different products terming them as 'similar products' for import. The approach was deprecated and the appellate authority found that there was no material suggesting undervaluation. In the present case, however, the adjudicating authority has referred to imports of identical material and based its conclusion on such imports. These observations are limited to making distinction between the earlier orders of adjudication passed by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of order-in-original 23.02.2017, the fresh instance relied upon is same as which the appellate authority, in the earlier round, has disapproved. The order is, therefore, set aside. The adjudicating authority shall pass fresh order with liberty to the aggrieved person to challenge it. B. In case of order-in-original dated 27.02.2017, the adjudicating authority has brought on record fresh material. The petitioner would, therefore, have to challenge the same before the appellate authority. C. In case of order-in-original dated 09.03.2017, the adjudicating authority has brought on record fresh material. The petitioner would, therefore, have to challenge the same before the appellate authority. D. In case of order-in-original dated 03.04. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing to the petitioners. That being the position, such assessments stand set aside. The adjudicating authority may, however, pass fresh order in accordance with law after giving notice to the petitioners. 14. It is clarified that wherever on the ground that the adjudicating authority has disregarded the order of the appellant authority and ruled against the importers, the proceedings are remanded, he shall pass fresh order in accordance with law on the basis of material already on record. It is further provided that wherever the petitioners are relegated to the appeal remedy, the appellate authority shall decide the appeals on merits, with reference to limitation, if such appeals are filed latest by 15.12.2017 considering the fact that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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