TMI Blog2020 (9) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... into the order dated 17.03.2017, cannot be termed as de-novo proceedings at all, but a continuation of the original proceedings. As such, the second respondent ought to have considered the request made by the petitioner for issuance of DDWC. The first respondent herein while passing orders in the appeal, had remarked that there was no mention of the request of DDWC before the lower Authority and that the Appellate Authority cannot entertain a prayer on which no decision or order has been passed by the lower Authority. Such a statement cannot be sustained for two reasons. Firstly, there was a request made by the petitioner before the second respondent in the reply to the show-cause notice. No doubt, such a request could have been given by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y No. 8621647 dated 17.03.2015 for clearance of goods declared as BIRD SCARE DEVICE (for agriculture use only), by classifying the goods under CTH84362900, relating to poultry-keeping machinery, poultry incubators and brooders. The respondents were of the view that the goods are classifiable under CTH93040000, which are restricted for import under the Arms Act and accordingly issued a show-cause notice dated 30.04.2015, proposing to reclassify the goods under tariff item No. 93040000. By a reply dated 30.05.2015, the petitioner had raised his objections, wherein they had also sought for issuance of a 'Demurrage cum Detention Waiver Certificate' (hereinafter referred as DDWC). Consequently, an Order-in-Original dated 19.06.2015 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent under CTH85318000 and held that the goods fall under the classification CTH93033 which covers Fire Arms and similar devices . With regard to the petitioner's claim for DDWC, it was held that there was no such request made before the LAA and that, the Appellate Authority cannot entertain a prayer on which no decision or order has been passed by the lower Authority. Challenging these Orderin- Original dated 17.03.2017, as well as the Order-in-Appeal dated 18.04.2017, the present Writ Petition has been filed. 3. The learned counsel for the petitioner initially raised several grounds challenging the reclassification under CTH93033, but however, during the course of arguments, submitted that the petitioner is willing to submit the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the authorities for issuance of DDWC, pursuant to the orders of this Court, de-novo proceedings were initiated and thereafter, the order in original came to be passed. Since there was no request from the petitioner in the de-novo proceedings for issuance of DDWC, the findings of the first respondent in the appeal cannot be found fault with. He would also submit that even if the petitioner's claim for the DDWC is ordered to be considered, the same will have bearing on the concerned CFS and therefore, it would be appropriate for the authorities to re-adjudicate the issue on the petitioner's claim for DDWC. 6. It is not in dispute that pursuant to the show-cause notice dated 10.04.2015, the petitioner had given a reply on 13.05.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent to conduct de-novo proceedings, but had only directed the second respondent to consider the Forensic Report and pass orders. The de-novo proceedings itself is a continuation of the original proceedings commencing from the petitioner's self-assessed bill of entry for clearance of goods, the consequential show-cause notice, as well as the reply of the petitioner. Therefore, the proceedings of the second respondent which culminated into the order dated 17.03.2017, cannot be termed as de-novo proceedings at all, but a continuation of the original proceedings. As such, the second respondent ought to have considered the request made by the petitioner for issuance of DDWC. 8. The first respondent herein while passing orders in the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the lower Authority. 10. During the earlier round of litigation, the first respondent herein had, in the order dated 30.06.2015, held that the petitioner would be entitled for issuance of DDWC, since the detention was not due to the fault of the importer. However, I find some force on the submission of the learned standing counsel that the issuance of the certificate may cause some prejudice to the CFS, who are not a party in this Writ Petition. Thus it would be appropriate to entrust the issue of grant of the certificate to the authorities, who shall take into account the observations made in this order with regard to the petitioner's entitlement for the DDWC. 11. For all the forgoing reasons, I uphold the findings passed in orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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