Cus - As adjudicating authority had already passed order in remand consequent upon Revenue's appeal before Tribunal, when appeal of importer came up before CESTAT matter could not have been remanded again: CESTAT
By TIOL News Service
MUMBAI, JUNE 13, 2015: VIDE O-in-O dated 28.11.2013 the adjudicating authority held that on the goods imported by M/s. Marks International, consisting of various cosmetic items, differential duty is liable to be paid on a determined value of Rs.48,61,973/-. He also ordered that CVD should be paid on these goods on the basis of MRP.
Revenue went in appeal before the CESTAT urging that in the matter of the proposal for confiscation of goods u/s 111(m) and imposition of penalty u/s 112, the adjudicating authority had not given any finding.
None appeared for the respondent importer.
The Bench observed -
"4.1 From the show-cause notice and the impugned order, it is clear that the goods were seized by the Customs and provisionally released on execution of bond and bank guarantee. The adjudicating authority has come to the conclusion that the goods are undervalued and therefore, he re-determined the value and demanded a differential duty. He has also held that the importer is liable to pay CVD on the basis of MRP. No quantification of duty has been made by the adjudicating authority. Further, the issue of confiscability of the items and the imposition of penalty proposed in the show-cause notice has not been examined by the adjudicating authority. Thus, there are many infirmities in the impugned order. Therefore, we set aside the impugned order to the extent of non-confiscation of goods and non-imposition of penalty and remand the matter back to the adjudicating authority for consideration of these issues raised in the show-cause notice in accordance with law. Needless to say that the importer should be given an adequate opportunity of defending their case before the de novo order is passed."
The appeal was allowed by way of remand vide Final Order No. A/1406/14/CSTB/C-I dated 1.9.2014.
Incidentally, the importer M/s. Marks International had also filed an appeal against the said order passed by the adjudicating authority.
None appeared for the appellant importer on the date of the hearing.
When the matter came up before the CESTAT, the AR informed the Bench that the Revenue had appealed against the same order &the matter has been remanded.
So, for the sake of consistency, the Tribunal allowed the appeal of the importer by way of remand. See 2015-TIOL-706-CESTAT-MUM.
Now, Revenue has filed a miscellaneous application under Rule 41 of CESTAT (Procedure) Rules praying for recalling Tribunal's Order No. A/110/15/CB dt. 06.01.2015 - 2015-TIOL-706-CESTAT-MUM and passing necessary directions to the department.
When the matter was heard, the importer was again not represented.
It is informed by the AR that in remand proceedings the Commissioner has passed a final order dt. 17.12.2014 on the issue of re-determination of value as well as confiscation of goods.
That it is clear that when the Tribunal passed Order No. A/110/15/CB dt. 6.1.2015 - 2015-TIOL-706-CESTAT-MUM, the respondent did not bring to the notice of the Tribunal that the Commissioner had already passed a fresh Order-in-Original dt. 17.12.2014 on all issues and had the respondent brought it to the notice of the Tribunal, their appeal would have become infructuous and there would have been no occasion to remand the case to the Commissioner again.
The CESTAT, therefore, held that its Order No. A/110/15/CB dt. 6.1.2015 is non-est in law.
In passing: Interestingly, the importer was never in the picture on all the three occasions!
(See 2015-TIOL-1121-CESTAT-MUM)
