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Judgment
Precise argument of the appellant is that appeal filed before the Commissioner (Appeals) was against order dated 21.5.2009 passed by the
Assistant Commissioner of Customs (copy of which is available at page 32 of appeal folder). Appellant made representation to the Commissioner of
Customs, New Delhi. But that authority did not dispose the representation. The Assistant Commissioner took decision thereon and informed to the
appellant. His decision is not appealable to Commissioner (Appeals) under section 128 of the Customs Act, 1962.
Ld. Counsel for the appellant submits that as is apparent from section 128 of Customs Act, 1962, it is settled principle of law that a person who is
aggrieved by an order get right to remedy against that order. He relied on the decision of Apex Court in the case of Commissioner of Customs &
Central Excise v. M.P. Steel Corporation-2013 (154) ELT 12 (SC) and also relied on Forbos Industries vs. CCE, Indore-2005 (179) ELT 458
(Tri.Del.). Further, he relied on Sheela Foam Pvt.Ltd. v. Union of India-1997 (95) ELT 453 (SC).
Revenue supports action of Revenue.
Heard both sides and perused the record.
Once representation was made to learned Commissioner, he was required to pass an order against that. But he failed to do so. The representation
was disposed by Assistant Commissioner. Appeal was therefore rightly filed before Commissioner (Appeals). Accordingly, the impugned order is set
aside and both the appeals are remanded to the Commissioner (Appeals) to dispose the matter on merits of the case. It should always be remembered
that an authority who he hears a matter, that authority should only pass the order following the ratio laid down in the case of Gullapalli Nageshwari
Rao v. Andhra Pradesh State Road Transport Corporation-AIR 1958 SC 308.
(dictated and pronounced in the open court)