M/s. Joe & Co., Versus The Commissioner of Customs, The Commissioner of GST & Central Excise (Appeals) And The Additional Commissioner of Customs
Customs
2018 (9) TMI 593 – MADRAS HIGH COURT – 2018 (362) E.L.T. 1026 (Mad.)
MADRAS HIGH COURT – HC
Dated:- 2-8-2018
W.P.(MD)No.9942 of 2018 And W.M.P.(MD)Nos.9110 and 9111 of 2018
Customs
Mr. M. Govindaraj J.
For the Petitioner : Mr. A. K. Jayaraj
For the Respondents : Mr. R. Aravindan
ORDER
The petitioner is an importer of Cement. He imported cement from Pakistan under four bill of entries on 09.11.2010, 27.12.2010, 28.04.2011, 28.04.2011. As per Counter Veiling Duty (CVD) under Serial No.1A(i) of Notification No.4/2006-CE, dated 01.03.2006 as amended, the petitioner's MRP was at Rs. 190/- per 50 kg., bag. There are certain conditions imposed under the notification dated 01.03.2006 for availing the exemption of Counter Veiling Duty (CVD). The petitioner has complied with the conditions and filed for exemption.
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nated the impugned order dated 09.01.2018. The appellate authority has dismissed the same as it is barred by limitation specified under Section 128 (1) of the Act. Aggrieved over the the order, the petitioner is before this Court.
2. The petitioner has challenged the Order in Original and as well as the Order in Appeal on the ground that the order passed by the original authority is without application of mind and without taking into consideration the relevant materials. It is stated that the consignments are imported a long back ago and therefore, he was not in a position to produce the invoices as well as the bill of entries questioned by the authority. But, now, the petitioner traced those bill of entries and complete set of invoices with regard to the disputed amount. Further, the authority has also failed to furnish the relevant materials and the procedure adopted by him was not transparent. In view of the notification issued by the respondent in Notification No.4/2006-CE dated 0
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authority in following circumstances that –
(A.1) The authority has passed the order without jurisdiction and by assuming jurisdiction which there exist none, or
(A.2) Has exercised the power in excess of the jurisidiction and by overstepping or crossing the limits of jurisdiction, or
(A.3) Has acted in flagrant disregard to law or rules or procedure or acted in violation of principles of natural justice where no procedure is specified.
(B) Resultantly, there is failure of justice or it has resulted into gross injustice.
We may also sum up by saying that the power is there even in aforesaid circumstances, but the exercise is discretionary which will be governed solely by the dictates of the judicial conscience enriched by judicial experience and practical wisdom of the judge.”
5. The above decision made by the larger bench of the High Court of Gujarat at Ahmedabad clearly held that when an order is passed in violation of principles of natural justice, without considering the
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tioner. In the interest of justice, the original authority shall be directed to consider the available materials and decide afresh.
8. This Court, in judgment passed in the case of Raagam Exports vs. Assistant Commissioner of Customs, Tirupur, reported in 2017 347 ELT 249 has held that where factual position is not considered, merely because the original authority has passed an ex-parte order, it cannot operate as estoppel to reconsider to establish by the petitioner before the Court.
9. In such circumstances, the orders passed in Order-in-Appeal No. 08/2018, dated 09.01.2018 confirming the order passed Order-in-Original Order No.82/2015 and the order passed Order-in-Original Order No. 82/2015 in C.No.VIII/10/150/2015-Adjn., dated 20.11.2015 are set aside.
The matter is remitted back to the original authority for fresh consideration on the basis of the material evidences produced by the petitioner.
10. In the result, the writ petition is disposed of with the above observations. No
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