The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) held that the appeal before the Commissioner (Appeals) lies only against the decision or order made by any officer of the custom under section 128 of the Customs Act, 1962.
K S Enterprises, the appellant assessee appealed against the order passed by the Commissioner of Customs (Appeals) for dismissing the appeal on the ground that the appeal was filed before him against a communication by the assessing officer seeking clarification from the importer during the assessment of bills of entry filed by the assessee.
Hardik Modh, the counsel for the assessee contended that even though it was a communication from the assessing officer but the same was a conclusive decision for denial of exemption notification.
It was further submitted that with the clear decision by the assessing officer, the assessee was denied the benefit of exemption therefore the said decision was challengeable by filing an appeal before the Commissioner (Appeals) and the appeal was maintainable as per the law.
Himanshu P Shrimali, the counsel for the department relied on the decisions made by the lower authorities and contended that the communication made by the assessing officer does not convey any decision and was not an order under section 128 of the Customs Act.
The bench observed that the decision taken by the assessing authority was a challengeable decision before the Commissioner (Appeals), since the Commissioner had not given any findings on merit the matter needs reconsideration in the interest of justice.
The two-member bench comprising Ramesh Nair (Judicial) and C.L. Mahar (Technical) directed the Commissioner (Appeals) shall pass a fresh order on merit within four weeks from the date of this order while allowing the appeal filed by the assessee.
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