Rule 5 of Customs (Appeals) Rules, 1982 is with reference to evidence to be produced by appellant - in Revenue appeal, importer is respondent and hence evidence produced ought to have been considered by Commr(A) - Matter remanded
THE appellant filed a refund claim for SAD.
The original authority sanctioned an amount of Rs.1,40,81,672/- and rejected the amount of Rs.4,48,108/-.
The Revenue filed an appeal on the following grounds:
(a) The adjudicating authority has not discussed anything about the validity of the Consignment Sale Agreements.
(b) On close scrutiny of the documents submitted by the importer along with the refund application it is seen that the importer M/s Uttam Galva Steels Ltd. had transferred the gods viz. Hot Rolled Steels totally weighing 405.120 MTs to the consignment agent M/s R.K. Steels under sixteen invoices instead of 43 sales invoices which were submitted by the importer.
(c) From the copy of the Consignment Sale Agreement entered into between the importer - M/s Uttam Galva Steels Ltd. and the Consignment Agent - M/s R.K. Steels, it is seen that the said agreement was made on 31.03.2007 and the same was valid for the period of one year i.e up to 30.03.2008. There is no document on record evidencing renewal of the said agreement or extension of the validity period of the said agreement. Thus, the refund in respect of 405.12 MT transferred by the importer to M/s R.K. Steels has been erroneously sanctioned by the Asst. Commissioner.
Before the appellate authority, the importer (respondent in Revenue appeal) produced a copy of Agreement Extension from 01.04.2008 to 31.03.2011 but the Commissioner (A) refused to take the same into consideration on the ground that under Rule 5 of the Customs (Appeals) Rules, 1982 the appellant is not entitled to produce before the Commissioner (Appeals) any evidence, whether oral or documentary, other than the evidence produced by them during the course of proceedings before the adjudicating authority. In fine, he allowed the Revenue appeal.
Aggrieved, the importer is before the CESTAT and refutes the stand taken by the Commissioner(A).
The Bench observed -
"4. We find that the copy of the Agreement Extension from 01.04.2008 to 31.03.2011 was not asked by the department before sanctioning the refund claim. However, the same was produced when asked before the Commissioner (Appeals). We also note that the Rule 5 of the Customs (Appeals) Rules 1982 is with the reference to the evidence to be produced by the appellant. In this case the above said Agreement Extension was not submitted by the appellant but by the respondent. In view of the above position we set aside the order of the Commissioner (Appeals) and remand the whole matter to the original authority for re-examining the matter with reference to the issues raised in the appeal filed by the Revenue before the Commissioner (Appeals). Needless to say that the appellant will be entitled to produce any documents relevant for the case and the adjudicating authority will pass the order after granting personal hearing."
Suffice to mention that the appeal was allowed by way of remand.