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Judgment
Mohan M. Shantana Goudar, J—The order of Customs, Excise & Service Tax Appellate Tribunal (''CESTAT'' for short), South Zonal Bench, Bangalore dated 13th February 2014 in Final Order No. 20225/2014 [2014 (314) E.L.T. 105 (Tri.-Bang.).] is called in question in this appeal by the Commissioner of Customs, Bangalore. Brief facts of the case are as under:
"The respondent herein is the holder of Customs House Agent''s licence bearing No. R-25/99 issued under the provisions of Customs House Agents Licensing Regulations, 2004 (''CHALR-2004'' for short). The said licence was valid up to 4-7-2014. On the basis of the said licence, the respondent was operating in various Customs Stations in terms of Regulation 9(2) of CHALR-2004.
On the basis of specific intelligence provided by the DRI, Chennai, that some unscrupulous importers are importing and clearing the dietary supplements in the guise of medicaments by resorting to classifying them wrongly under CTH 30045020 instead of CTH 2106909 and that they are also clearing the said goods without payment of countervailing duty (CVD) on the basis of declaration of Retail Sale Price as required under proviso to Section 3(2) of Customs Tariff Act in order to evade payment of duty, investigation of all the imports made by the companies was initiated. During the course of investigation, it was found that the respondent acted as Customs House Agent (''CHA'' for short) and facilitated the clearance of three consignments imported by one M/s. Itspossible Marketing Limited (2 at ACC, Bangalore). As regards the bills of entry filed at ACC, Bangalore, the description of the goods were found to be mis-stated inasmuch as the expressions like "Mineral Substances", "for manufacturing purpose" which were not available in the corresponding supplier''s invoices were added to the ''item description''. Pursuant to the investigations initiated by the DRI, Chennai, the Commissioner of Customs, Chennai, passed the order dated 29-4-2013 suspending the CHA licence of the respondent under Regulation 20(2) of the CHALR, 2004 until further orders. Subsequently, after hearing the matter finally, the Commissioner of Customs, Chennai, passed the order dated 7-5-2013 revoking the blanket suspension imposed.
However, he recommended for action for prohibition against the said CHA by the Commissioner of Customs, Bangalore, in terms of Regulation 21 of CHALR, 2004. The said order dated 7-5-2013 is at Annexure-C. It is relevant to note that the order passed by the Commissioner of Customs, Chennai, dated 7-5-2013 has remained unquestioned.
Pursuant to order Annexure-C dated 7-5-2013, the Commissioner of Customs, Bangalore, passed, the prohibition order prohibiting the operations of the respondent within the jurisdiction of Bangalore Commissionerate with immediate effect as per the order dated 11-7-2013 vide Annexure-D.
The order at Annexure-D dated 11-7-2013 is questioned by the respondent before CESTAT, South Zonal Bench, Bangalore, which came to be allowed by the impugned order Annexure-A dated 13-2-2014. The said order of the Appellate Tribunal is the subject matter of this appeal."
Sri Jeevan J. Neeralgi, learned advocate appearing on behalf of the appellant, submits that the appeal before the CESTAT is not maintainable; the Tribunal is not justified in allowing the appeal in its entirety on merits also, though it is found that the Commissioner of Customs, Bangalore, has passed the order Annexure-D without notice to the respondent. He also argues on the merits of the matter.
Learned advocate for the respondent argued in support of the order passed by the Tribunal.
Since the matter needs to be remitted to the Commissioner of Customs, Bangalore, on the short point that the respondent is not heard in the matter by the Commissioner of Customs, we do not propose to enter into other questions involved in this appeal.
Undisputedly, the respondent is not heard in the matter by the Commissioner of Customs, Bangalore. Hence the order Annexure-D dated 11-7-2013 passed by the Commissioner of Customs, Bangalore, is opposed to the principles of natural justice. Accordingly, the same is liable to be set aside. The Appellate Tribunal though has set aside the order passed by the Commissioner of Customs, Bangalore, on the ground that the respondent was not heard in the matter, the Tribunal instead of remitting the matter to the Commissioner of Customs, Bangalore, proceeded to allow the appeal in its entirety even on merits. Hence, the order of the Appellate Tribunal is also liable to be set aside. Accordingly, the following order is made :
"The impugned Final Order No. 20225/2014, dated 13-2-2014 vide Annexure-A passed by the Customs, Excise & Service Tax Appellate Tribunal, South Zonal Bench, Bangalore as well as the Order No. C. No. VIII/13/24/2000.CUS.TECH, dated 11-7-2013 passed by the Commissioner of Customs, Bangalore, vide Annexure-D stand set aside.
The matter is remitted to the Commissioner of Customs, Bangalore, for fresh disposal in accordance with law.
All other questions raised by the appellant in this appeal are kept open."