By TIOL News Service

CHENNAI, MAR 14, 2016: THIS is a revenue appeal against the order passed by the Commissioner (Appeals) setting aside the order of the lower authority. The Commissioner (Appeals) found that the declared value of the goods imported was enhanced without passing any speaking order. So also without following Rule 12 of the Customs Valuation Rules, 2007, value of the imported goods was enhanced by the adjudicating authority which was uncalled for. According to him, that made the revaluation of import illegal, null and void ab initio and there was no mis-declaration of value on the part of the importer.

Revenue contended that the Commissioner (Appeals) having power only to confirm, modify, annul, reduce or enhance the adjudication, there is no power vested on him to pass order in any administrative capacity issuing administrative directions beyond his jurisdiction. The derogatory remarks made by him in the appellate order as to the delay if any made in clearance was uncalled for and that too without having regard to the material facts of the case and circumstances. Conduct of appellant to make mis-declaration of the value of the imports was ignored by the Commissioner (Appeals).

The Tribunal called for the records from the office of the Commissioner (Appeals). On perusal of the same, the Tribunal observed that:

+ Perusal of the content of the order sheet indicates that there was noting on 22.12.2014 for fixation of hearing on 23.12.2014. But no such hearing was granted on that date i.e. 23.12.2014 in absence of any recorded action by the Commissioner (Appeals). A sheet showing grant of hearing on 24.12.2014 without any authentication by signature of Commissioner (Appeals) appears on record. One day before the hearing fixed on 23.12.2014 record was submitted to Commissioner (Appeals) by one ADO under his signature on the order sheet. Fair copies of Order-in-Appeal was put up to Commissioner (Appeals) on 21.1.2015 for signature and approval of Commissioner (Appeals). There is no signature of Commissioner (Appeals) on order sheet on that date.

+ Above manner of maintenance of public record shows that an empty formality was followed by the Commissioner (Appeals) for disposal of appeal. The appeal order was signed by Commissioner (Appeals) undated and that appears to have been issued on 28.1.2015 as per preamble to the impugned order.

+ Aforesaid factual matrix discloses that the entire action of the Commissioner (Appeals) is contrary to law and there is no disposal of appeal as yet on his record. If this is the manner an appellate authority acts, and his undated order comes for judicial review, it is difficult to appreciate the very existence of the impugned order itself as to whether that has seen the light of the day.

+ The jurisprudence that flows from the judgment of Apex Court in the case of Gordhandas Bhanji 1952 AIR 16 SC that when a thing is required to be done in the manner required by law and a public authority should pass public order publicly and public orders made by public authorities are meant to have public effect and are intended to effect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself, it can be said that order of learned Commissioner (Appeals) has no existence in law. Accordingly, the remarks made by appellate Commissioner shall also have no legs to stand.

+ Perusal of the adjudication order throws light that the adjudicating authority summarily disposed of the proceeding without a speaking order. Therefore, he is directed to issue appropriate notice to the importer clearly bringing out allegations if any for the defence of the later and granting reasonable opportunity of hearing shall pass a reasoned and speaking order considering defence plea as well as evidence if any led by the importer.

+ Before parting with this order, it is necessary to inform the Central Board of Excise & Customs (CBE&C) that appropriate guideline may be issued to the quasi Judicial Authorities in administrative justice system to discharge their duties publicly keeping in view the spirit of the ratio laid down by Apex Court in the case of Gordhandas Bhanji and in accordance with law. Also the manner how order sheet of public record shall be maintained by such authority while they discharge public duty may be advised.

Accordingly, the Tribunal remanded the matter to the original authority.

(See 2016-TIOL-604-CESTAT-MAD)