CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL,
WEST ZONAL BENCH : AHMEDABAD
REGIONAL BENCH – COURT NO. 3
Legal Robe 10116 of 2017-DB
[Arising out of Order-in-Original/Appeal No JMN-CUSTM-000-APP-037-16-17 dated 26.10.2016 passed by Commissioner (Appeals) Commissioner of Central Excise, Customs and Service Tax-AHMEDABAD]
Sudh Priya Plastichem Pvt Limited
VERSUS
Commissioner of Customs, Jamnagar(Prev)
APPEARANCE :
Shri H.K. Hirani, Consultant for the Appellant
Smt. Bina D Jani, Superintendent (AR) for the Respondent
CORAM: HON’BLE MR. RAMESH NAIR, MEMBER (JUDICIAL) HON’BLE MR. C.L. MAHAR, MEMBER (TECHNICAL)
DATE OF HEARING : 22.03.2023 DATE OF DECISION: 12.07.2023
FINAL ORDER NO. 11485/2023 RAMESH NAIR :
The brief facts of the case are that the appellant have imported non- woven fabrics of seven different dimensions falling under Chapter heading 56039400, declaring the value of Rs. 33,99,135.26. The Adjudicating Authority has rejected the said value and re-determined the value at Rs. 66,10,164/- under Section 14 of the Customs Act, 1962 read with Rule 9 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 and demanded differential duty, imposed redemption fine and penalties. The value was enhanced on the basis of difference in quantities between the import documents presented by the appellant and the documents obtained through the embassy of exporting country.
- Shri HK Hirani, learned Consultant appearing on behalf of the appellant, at the outset submits that neither the Adjudicating Authority nor the Commissioner (Appeals) has considered the detailed submissions and documents produced by the appellant therefore there is gross violation of natural justice by both the lower authorities. Therefore, the order is illegal and incorrect. Being aggrieved by order-in-original the appellant was in appeal before the Commissioner (Appeals) and the Commissioner (Appeals) concurring with the view of the Additional Commissioner, rejected the appeal. Hence the present appeal.
- Bina D Jani, learned Superintendent (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order.
- We have carefully considered the submissions made by both the sides and perused the record.We find that learned Commissioner (Appeals) rejected the appeal before him filed by the appellant on the findings given in the impugned order. The relevant findings are reproduced:-
“12. To summarize the undisputed facts of the case, it can be mentioned that the quantity of the goods imported have been found to be highly in excess of the quantity declared and therefore it was grossly mis-declared which obviously prompted verification of value declared. Here, it is also noted that the different quantity was mentioned in different import documents viz. Bill of Lading and Packing List and quantity as observed during the course of physical verification was altogether a different one. The verification caused in respect of value has revealed that a substantially higher value was declared before concerned authorities at port of export. These peculiar and undisputed facts of the case required the said appellants to answer some serious questions. However, they have chosen to remain silent and dishonor the summons issued to them. Having failed to participate in the investigations and thus not providing co-operation in the exercise of department to find the truth, they have maintained during the course of adjudication that NIDB data supplied by them be referred and goods be assessed accordingly.
- Coming to the serious doubts raised over the credibility of value relied upon and as declared before the Customs authorities at China. I find that the lower adjudicating authority has dealt with issue with utmost sensitivity and given cogent findings as he has done in respect of other aspects of the case and the said findings are duly contained in paragraphs No. 23 to 28 of the impugned order and I do not find any need to elaborate it further. The said appellants have failed to contradict the appreciation of the questioned document as done by the lower adjudicating authority. In the instant case, the document under dispute has passed through a legal channel and it bears a seal of the customs authorities at China. Also, it was forwarded through the Consulate General of India at Hong Kong. Therefore, its sanctity is preserved and accordingly it has enough evidentiary value to support the case of the revenue and presumption provided under Section 139 of the Customs Act, 1962 (hereinafter referred to as the said Act) is certainly applicable.”
From the above findings it can be seen that learned Commissioner (Appeals) has contended that the appellant have not participated in the investigation and in Para 13, as reproduced above he has not considered the grounds of appeal in the appeal and he stated not to elaborate over and above the findings given in order-in-original.
- Theappeal filed by the appellant before us, the relevant Para (C) of grounds of appeal is reproduced below:-
“C. BECAUSE the various document(s) filed, submissions made and clarification(s) provided to the Department by the Appellant herein prior to the issuance of the S.C.N. in question, during inquiry and at the time of submission of their reply to the SCN and at the time of personal hearing and at the time of the hearing of the appeal below seem to have been mechanically ignored, not been considered in their proper perspective and have not been dealt with as such.”
From the above ground made by the appellant it appears that whatever defense was taken by the appellant, has been ignored and not considered properly by both the authorities below.
- In view of the above, we are of the opinion that the appellant can be given one opportunity to present their case with all the details and evidences to rebut the charges of the Revenue. Accordingly, we set-aside the impugned order and remand the matter to the Adjudicating Authority for passing a fresh order after observing the principles of natural justice. The appeal is allowed by way of remand to the Adjudicating Authority.
(Pronounced in the open court on 12.07.2023)
(Ramesh Nair) Member (Judicial)
(C L Mahar) Member (Technical)
KL
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