" \n \nIN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL \n EASTERN ZONAL BENCH : KOLKATA \n \nREGIONAL BENCH – COURT NO. 1 \n \nCustoms Appeal No. 77304 of 2019 \n CO-77478/19 \n(Arising \nout \nof \nOrder-in-Original \nNo.KOL/CUS/COMM/PORT/21/2019 \ndated \n16.07.2019 passed by Commissioner of Customs, Kolkata) \n \n \nAPPEARANCE: \nMr. S.Debnath Authorized Representative for the Appellant \n \nMr. Sudhir Mehta, Sr. Advocate for the Respondent \n \nCORAM: \nHON’BLE SHRI ASHOK JINDAL, MEMBER (JUDICIAL) \nHON’BLE SHRI K. ANPAZHAKAN, MEMBER (TECHNICAL) \n \nFINAL ORDER NO. 75245/ 2025 \nDATE OF HEARING :28.01.2025 \n DATE OF HEARING: 28.01.2025 \nOrder : [Per Shri Ashok Jindal] \n \n \nRevenue has filed this appeal against the \nimpugned order for non imposing penalty against the \nRespondent under Section 114 AA of the Custom Act, \n1962. In respond to the appeal filed by the Revenue \nRespondent has also filed Cross-Objections. In the \nCross –Objection the Ld. Counsel for the Respondent \nopposed the order of the Adjudicating Authority on \nthe ground that the adjudication has passed an ex \nparte order which is in violation the principle of \nNatural Justice. Therefore, it is prayed that the \nCommissioner of Customs(Port), Kolkata \n \n15/1, Strand Road, Customs House, Kolkata-700 001. \n \n : Appellant \n \nVERSUS \n \nM/s. Surabhi Enterprises Pvt.Ltd. \n \n4/1, Camac Street, Ground Floor, Kolkata-700 016. \n : Respondent \n\n2 \n \nAppeal No.: C/77304/2019-DB \n \n \nimpugned order is to be set aside and the matter be \nremanded back to the Adjudicating Authority for de \nnovo \nAdjudication \nafter \nfollowing \njudicial \npronouncement announced on the subject. In \nsupport of their claim he filed the order of this \nTribunal in Custom Appeal filed by Shri Hari Wax-O-\nChem Private Limited and Others wherein the \nproceedings were dropped by this Tribunal vide Final \nOrder No. 77044-77051/2019 dated 09.08.2019. \n2. \nTherefore, it is prayed that the impugned order \nis to be set aside and remanded matter back to the \nAdjudicating Autority. \n3. \nOn \nthe \nother \nhand \nthe \nLd. \nAuthorized \nRepresentative opposed the contention of the Ld. \nCounsel \nand \nsubmitted \nthat \nthe \nAdjudicating \nAuthority has passed the order on merits considering \nall the aspects on the issue. But the Adjudicating \nAuthority did not impose penalty under Section 114 \nAA of the Customs Act, 1962. Therefore, the \nRevenue is in appeal. \n4. \nHeard the parties. Considered the submissions. \n5. \nWe find that in this case the sole contention of \nthe Respondent is that there is a violation of \nprinciple of Natural Justice and in support of that he \nrelied on the impugned order itself in para 73 and \n74. For better appreciation of the fact the same is \nextracted here below: \n \n“73. On 20.02.2019. Mr. Sudhir Kumar Mehta, \nAdvocate and Shri Nand Kishore Chauhan Director of \nM/s Surabhi Enterprises Pvt. Ltd. appeared for \nPersonal Hearing. During Personal Hearing, they \nreiterated the submission made vide their letter \n\n3 \n \nAppeal No.: C/77304/2019-DB \n \n \ndated 27.04.2018 and 19.02.2019 and further \nsubmitted additional written submissions which were \ntaken on record. They also stated that they may be \ngiven copies of RUD's. The same was provided to \nthem vide this office letter dated 02.05.2019 which \nwas provided to them vide this office letter dated \n02.05.2019. \n \n4. Through letter dated 14.06.2019 the noticee filed \ntheir supplementary reply to the departments Show \nCause Notice bearing File No. S 2-02/SIB/2018 dated \n28.03.2018 wherein the noticee has inter-alia \nsubmitted the following in additions to their earlier \nsubmissions \n \n1. That Mr Ramdeo Purba may be summoned for the \npurpose of evidence and/or witness examination or \ncross examination. \n \nII. Slack Wax and Residue wax are used for \nmanufacturing Paraffin Wax. Two metric tons of \nSlack Wax and Residue Wax would make one Metric \nTons of Paraffin Wax.Chennai Petroleum Corporation \nsells paraffin wax in the market @ USD 800/MT \nwhich justifies their declared value of USD 400 M/T \nfor Slack Wax. \n \nIII. That the officer of DRI cannot invoke Rule 12 as \nthey are not the proper officer for assessment of \ngoods inasmuch as the power under Rule 12 is \nconferred on the Assessing Officer of Customs who is \nthe Proper Officer. \n \niv. That the valuation of the goods could have been \neasily determined under Rule 7 of CVR 2007. \n\n4 \n \nAppeal No.: C/77304/2019-DB \n \n \nRejection of the value under Rule 7 by making \nsweeping and baseless allegations that all sales \nwhich took place in India were at under invoiced \nvalue would be ex facie not tenable and apparently \nabsurd. \n \nV. They have been able to procure export declaration \nof Slack Wax and Residue Wax from the exporting \ncountries \nwhich \njustifies \ntheir \ndeclared \nvalue \n(However they have not elaborated or submitted \ncopies of the same) \n \nVI. It is not a case of misdeclaration The SCN under \nSection 28 cannot be issued by invoking Rule 9 \n(Residual method) read with rule 12. Therefore the \nentire proceeding is bad in law.” \n \n6. \nOn going through the seconds placed before \nus, we find that no reasonable opportunity of being \nheard has been afforded by the Adjudicating \nAuthority \nto \nthe \nRespondent. \nTherefore, \nthe \nimpugned order is in violation of principle of Natural \nJustice which required to be set aside. Therefore, we \ndo so and set aside the impugned order. \n7. \nWe also direct the Adjudicating Authority to re-\nadjucate the matter after affording reasonable \nopportunity to the Respondent after supply of the \nrequired \ndocuments \nto \nthe \nRespondent \nand \nthereafter follow the judicial discipline and then \nadjudicate the matter within 90 days of receipt of \nthis order. \n8. \nAppeal as well as Cross –Objection are \n \n \n\n5 \n \nAppeal No.: C/77304/2019-DB \n \n \ndisposed of in the above matter. \n (Dictated and pronounced in the open court) \n \n \n \n \n (ASHOK JINDAL) \n \n MEMBER (JUDICIAL) \n \n \n \n (K. ANPAZHAKAN) \n MEMBER (TECHNICAL) \n \n \n \nRG \n \n \n \n"