MICROLAND Vs. COMMISSIONER OF CUSTOMS, BANGALORE

JUDGEMENT

(1.) THIS is an appeal against OIA No. 51/04, dated 30 -3 -2004 passed by the Commissioner of Customs (Appeals) Bangalore. The brief facts of the case are as follows :

(2.) THE appellant imported the goods and warehoused them under Section 61 of the Customs Act. For some reason or to other they were not able to clear the goods on payment of duty by availing the facility of extension of warehousing period provided under the Customs Act. The appellants were given time up to 31 -3 -1999 for clearing the goods as per law. It is seen that the imported goods are computer parts and due to high rate of obsolescence in information technology and also consequent to the slow down of the economy, they were not able to sell the imported goods. Under these circumstances, they applied to RBI for permission to re -export the goods after getting some orders from foreign buyers at a much reduced price. The appellants contend that prior to expiry of the extended warehousing period i.e. 31 -3 -1999, they requested the department for further extension of the period so that they could export the goods after getting RBIs permission. They sent a letter dated 22 -3 -1999 addressed to the Additional Commissioner of Customs for seeking permission to export the goods. According to the appellant, there is no response from the department for the above letter. There was further correspondence with the department when the RBI permitted them to re -export the goods. There was no response at all from the Customs Department. However on 12 -10 -2000, they received a letter from the O/O the Deputy Commissioner of Customs, asking them to pay a penalty of Rs. 5,000/ - per bond totally amounting to Rs. 85,000/ -. The appellant paid the amount promptly. The text of the above mentioned letter dated 12 -10 -2000 is as follows :

(3.) IN view of the above letter, the appellant believed that the department is going to consider their request for re -export and therefore they promptly paid the amount demanded as penalty on 13 -10 -2000. However the Dy. Commissioner issued an order dated 19 -10 -2000 demanding duty on warehoused goods along with interest. There was no reference to the amount of Rs. 85,000/ - paid by them on a direction from the Department on 12 -10 -2000. Aggrieved over the order of the Dy. Commissioner, they appealed to the Commissioner (Appeals) who in his Order -in -Appeal No. 24/03 -Cus., dated 20 -1 -2003/23 -1 -2003 remanded the matter to the original authority with the following observations : I have carefully gone through the facts of the case and the written & oral submissions made by the party. I find merit in the argument of the Appellants that their request for re -export on the basis of a firm order should have been considered by the Department as the application had been made well before the expiry of the extended warehousing period (31 -3 -1999). From the facts on record, it is also seen that the Department had considered the request for re -export in their letter dated 12 -10 -2000 in which the assesses were directed to pay a total penalty on the 16 bonds of Rs. 85,000/ - under Section 117 of the Customs Act. On the basis of the said order, the Appellants paid the penalty amount under the express assumption that the re -export permission was being given subject to payment of penalty. I therefore find that this is a fit case for reconsideration of the findings in view of the facts presented and this is a case for de novo adjudication. On de novo adjudication, it has been contended that the Appellate Authority under the present legal dispensation does not have the authority for remanding the case for de novo adjudication. I do not agree with this. In the case of Union of India v. Umesh Dhamode [reported in 1998 (98) E.L.T. 584 (S.C.)] the Honble Supreme Court, inter alia, pronounced that the Appellate Authorities having powers under Section 128 for passing orders confirming modifying or annulling the decision on orders appealed against it, would have powers to remand since an order of remand necessarily annuls the decision, which is under appeal. In view of this, I remand the case for de novo adjudication with the specific direction indicated supra.