M/S.Joe & Co. vs. The Commissioner Of Customs

Facts

The petitioner, M/s. Joe & Co., an importer of cement, challenged orders confirming a demand for differential duty, interest, and penalty. The petitioner imported cement from Pakistan in 2010 and 2011. A show cause notice was issued on July 15, 2015, proposing denial of Counter Veiling Duty (CVD) exemption and recovery of duty with interest and penalty. The petitioner replied, stating inability to produce certain documents at that time but later traced them. The Additional Commissioner of Customs, Tuticorin, vide Order-in-Original dated November 20, 2015, confirmed the demand of differential duty and interest under Section 28(AA)(1) and (2) of the Customs Act, 1962, and imposed a penalty under Section 114(A). The appeal before the Commissioner of GST & Central Excise (Appeals), Trichy, was dismissed on January 9, 2018, on grounds of limitation under Section 128(1) of the Act.

Held

The Court held that the appellate authority's dismissal of the appeal on the technical ground of limitation was not appropriate, especially when the petitioner had subsequently traced crucial documents and alleged that the original authority had not considered all relevant materials. Citing the Gujarat High Court's decision in *Panoli Intermediate (India) Pvt. Ltd. vs. Union of India*, the Court emphasized that under Article 226 of the Constitution, it can interfere if an order is passed in violation of principles of natural justice, without considering relevant materials, and results in gross injustice. The Court also referred to its own judgment in *Raagam Exports vs. Assistant Commissioner of Customs, Tirupur*, stating that an ex-parte order should not operate as an estoppel to reconsider facts if the factual position was not considered. Therefore, the Court set aside both the Order-in-Appeal and the Order-in-Original and remitted the matter back to the original authority for fresh consideration of the material evidence produced by the petitioner. The Court found that non-consideration of these materials could lead to failure of justice and irreparable hardship to the petitioner.

Key Issues

1. Whether the appellate authority erred in dismissing the petitioner's appeal solely on the ground of limitation under Section 128(1) of the Customs Act, 1962, when the petitioner had subsequently traced crucial documents and the original authority allegedly failed to consider relevant materials? (Mixed law and fact) Petitioner's arguments: The petitioner contended that the original authority's order was passed without application of mind and without considering relevant materials, particularly the bill of entries and sales invoices, which were later traced. The petitioner argued that the appellate authority's rejection on technical grounds of limitation, despite the availability of evidence that could alter the outcome and lead to gross injustice, was erroneous. They relied on the Gujarat High Court's decision in *Panoli Intermediate (India) Pvt. Ltd. vs. Union of India* regarding interference under Article 226 when principles of natural justice are violated or gross injustice occurs. Revenue's arguments: The judgment does not record specific arguments made by the respondents.