Case Law Details
Neeraj Sharma Vs Commissioner of Customs (CESTAT Ahmedabad)
Revenue Department cannot pass subsequent order in the matter which is already been adjudicated
The CESTAT, Ahmedabad, in Neeraj Sharma v. Commissioner of Customs, Kandla [Customs Appeal No. 12056 of 2018-DB dated July 24, 2023] set aside the order passed by the Adjudicating authority on that matter which is already been adjudicated and held such order as void-Ab-initio.
Facts:
Neeraj Sharma (“the Appellant”) was served with a Show Cause Notice dated March 28, 2018 (“the SCN”).
Thereafter, an order-in-original was passed by the Adjudicating Authority imposing the penalty of INR 25 Lakh under Section 112(b) of the Customs Act, 1962 (“the Customs Act”).
The Appellant filed an appeal before the CESTAT against the order-in-original (“the Impugned Order”) contending that the impugned order is void ab-initio as the SCN has already been adjudicated by the Adjudicating Authority vide order dated June 30, 2014 and the appeal was already filed against the said order before the CESTAT, Mumbai.
The Appellant further submitted that issuance of second adjudication order is clearly not sustainable in law particularly when the appeals are against order-in-original dated June 30, 2014 are pending before the CESTAT, Mumbai.
Issue:
Whether the Revenue Department can issue SCN on the same matters which is already been adjudicated by the Adjudicating Authority?
Held:
The CESTAT, Ahmedabad, in Customs Appeal No. 12056 of 2018-DB held as under:
- Observed that, the Impugned Order was already adjudicated by the Ld. Commissioner of Customs vide order-in-original No. 5/2013-14/CC(I)JNCH dated June 30, 2014 and is currently pending before the CESTAT, Mumbai.
- Held that, the present order passed by the Revenue Department is ab-initio void and illegal.
- Set aside the Impugned Order and clarified that the CESTAT, Mumbai is at liberty to deal with the appeals independently which are pending before them.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
This appeal is directed against order-in-original No. KDL-COMMR-SKA-30-2017-18 dated 29.03.2018 passed by learned Commissioner of Customs, Customs House, Kandla. The said order was adjudicated in the proceedings initiated vide show cause notice F.No. DRI/SRU/INV-11/2006/517 dated 28.03.2018 issued by Additional Director General, DRI, Ahmedabad Zonal Unit, Ahmedabad. In the adjudication order, penalty of Rs. 25 Lakh has been imposed under Section 112(b) of Customs Act, 1962 on the appellant who was a co-noticee in show cause notice dated 28.03.2018.
2. Shri VR Sethi, learned Counsel at the outset submits that the impugned order is void ab-initio as the same show cause notice dated 28.03.2018 has earlier been adjudicated by the learned Commissioner of Customs, JNCH, Navi Mumbai vide order-in-original No. 5/2013-14/CC(I)JNCH dated 30.06.2014. Against the said order-in-original dated 30.06.2014, appeal was filed by the appellant before CESTAT Mumbai bearing No. C/89367/2014-Mum and CESTAT Ahmedabad bearing No. C/13513/2014. The appeal No. C/13513/2014 filed at Ahmedabad has already been transferred to Mumbai on the request made by the appellant for taking with appeal No. C/89367/2014-Mum. He submits that both the appeal are still pending at CESTAT Mumbai and the main party to the proceedings M/s. Sainath Industries also filed appeal against order-in-original No. 5/2013-14/CC(I)JNCH dated 30.06.2014 at CESTAT Mumbai bearing Appeal No. C/89435/2014 which is also pending. It is his submission that in view of this factual position, issuance of second adjudication order is clearly not sustainable in law particularly when the appeals are against order-in-original dated 30.06.2014 are pending before CESTAT Mumbai against the proceedings arising out of the same show cause notice dated 28.03.2018.
3. Shri Tara Prakash, learned Deputy Commissioner (AR) fairly concede that the impugned order in the present appeal was passed in the same show cause notice wherein the adjudication order was already passed by Commissioner of Customs, JNCH, Navi Mumbai vide order-in-original No. 5/2013-14/CC(I)JNCH dated 30.06.2014, therefore, the present order should not have been passed again on the same show cause notice.
4. We have considered the submissions made by both the sides and perused the record. We find from the record that it is clear that the show cause notice bearing F.No. DRI/SRU/INV-11/2006/517 dated 28.03.2018 was already adjudicated by Commissioner of Customs, JNCH, Navi Mumbai vide order-in-original No. 5/2013-14/CC(I)JNCH dated 30.06.2014. Accordingly, the present impugned order is ab-initio void and illegal. Accordingly, the same is set-aside the appeal is allowed.
5. Having held above, we would like to make it clear that the Tribunal Mumbai is at liberty to deal with the appeals independently which are pending before it against the order of Commissioner of Customs, JNCH, Navi Mumbai.
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