The Mumbai Bench of Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has held that misdirection of ‘self- assessment’ is an inappropriate exercise of statutory authority.
The bench of Justice Dilip Gupta (President) and C.J. Mathew (Technical Member) has observed that it is but right that superior authorities be made cognizant of circumventing law by field formations. A copy of this order may, therefore, be placed before Chairman, Central Board of Indirect Taxes & Customs (CBIC) for his attention.
The appellant/assessee has challenged the affirmation of charging of ‘anti-dumping duty (ADD)’ under section 9A of Customs Tariff Act, on ‘aluminium strip (use in evaporator) (for automotive heat exchanger)’ imported by them against 188 bills of entry between 14th December 2021 and 10th October 2022 and assessed to rate of duty – both ‘basic customs duty (BCD)’ and ‘integrated tax (IGST)’.
According to threshold of thickness, to tariff item 7606 1200 and tariff item 7607 1991 of First Schedule to Customs Tariff Act is before us impugning order of Commissioner of Central Excise (Appeals – II), Pune which disposed off six appeals on merit without the benefit of reasoning that prompted the ‘proper officer’ to burden them with duties that were not intended by law.
The appellant filed three appeals against the assessment in as many bills of entry and three appeals against bills of entry before the first appellate authority who, upon examination of notification no. 68/2021-Cus (ADD) dated 6th December 2021, dismissed their plea of non-leviability after concluding that absence of ‘speaking order’.
The appellant contended that in the absence of ‘speaking order’ mandated by section 17(5) of Customs Act, 1962, the relief sought by them be granted for which reliance was placed on the decision of the Tribunal in Commissioner of Customs (Preventive), Jodhpur vs. Shiv Ganesh Exim Pvt Ltd8.
The appellant contended that the finding in the impugned order of clearance of the goods, proceeding from circumstances of having taken a commercial decision, notwithstanding burden of disputed duty, owing to pressing need, without contest was incorrect inasmuch as the ‘protest’ lodged at the time of discharge of duty liability was noted by the first appellate authority and that statutory mandate required each such re-assessment to be justified on every occasion.
The tribunal found that the ‘proper officer’ did not go beyond re- assessment and, yet, the first appellate authority, notwithstanding the silence thereafter, took it upon itself to offer reasons for adoption of the revised classification which may, or may not, have occurred to the ‘proper officer’ when the liability to ‘anti-dumping duty (ADD)’ was brought to bear. This was undertaken without pre-requisite, in terms of second proviso to section 128A(3) of Customs Act of notice to importer and more especially warranted in circumstances of neither notice preceding the commencement of the dispute nor such proposal on record by way of appeal of Revenue.
The tribunal held that the assessment which emerged was not the claim preferred in the entry and that consent of the importer had not been obtained for such alteration should have been cause for alarm in the first appellate authority. Affirmation of re-assessment without any material to go by invalidates it ab initio. The lack thereof should have prompted the first appellate authority to enforce compliance with consequence of revision.
The tribunal set aside the orders and restored the bills of entry before the original authority for disposal in the manner set out in section 17 of Customs Act.
Case Details
Case Title: Mahle Anand Thermal Systems Pvt Ltd versus Commissioner of Customs
Case No.: CUSTOMS APPEAL NO. 86031 OF 2023
Date: 02.12.2024
Counsel For Appellant: T Vishwanthan
Counsel For Respondent: Priyesh Bheda
