ORDER
P.G. Chacko, Member (J)
1. After examining the records and hearing both sides, we find that the appeal itself merits summary disposal. Accordingly, after dispensing with predeposit, we proceed to deal with the appeal. The original authority had, in adjudication of a show cause notice dated 25.4.03 (read with corrigendum dated 5.4.04), passed an order demanding anti-dumping duty of Rs. 42,91,239/- from the appellants in respect of a consignment of compact florescent lamps cleared under Bill of Entry dated 1.8.02. The order of adjudication was taken in appeal on numerous grounds. The learned Commissioner (Appeals) invalidated the corrigendum (whereby demand of duty was changed from Rs. 38,49,776/- to Rs. 42,91,239/-) and, accordingly, set aside the enhancement of demand, while sustaining the original demand of Rs. 38,49,776/-. This decision of the appellate authority is clearly forthcoming from para 8 of the impugned order. The Commissioner (Appeals), in para 10 of her order, examined a different issue which had been agitated before her with reference to Section 28(2A) of the Customs Act, 1962. It was noticed that the original authority which had passed its order beyond six months from the date of show cause notice, did not state any reason as to why it was not possible for it to pass the order within six months prescribed under Section 28(2A) ibid. Accordingly, learned Commissioner (Appeals) remanded the case to the lower authority with a direction to “revisit the issue on the limited point of why it was not possible to determine the duty in the specified period as per Section 28(2A) ibid”. Para 10 of the impugned order is reproduced below:
As per Sub-section 2A of Section 28 of the Customs Act, 1962, the proper officer where it is possible to do so, shall determine the amount of duty within a period of six months from the date of service of the notice on the person under Sub-section (1).
In this case, the duty was determined after the specified period of six months. From the order in original, it is not known why it was not possible to determine the duty within the specified period.
In view of the above, the order is annulled with direction to Adjudicating authority to revisit the issue on the limited point of why it was not possible to determine the duty in the specified period as per Section 28(2A) of the Customs Act, 1962.
Going by the above order of the lower appellate authority, we find that the order of adjudication was annulled. However, the effect of the above order came to be modified by the Commissioner (Appeals) by issuing a corrigendum which reads thus:
Also in page 8, 2nd para in the 1st line, after the word “annulled” the following may be inserted “to that extent of Corrigendum, dated 5.4.2004.
2. We have heard the rival submissions and arguments, with reference to the above corrigendum issued by the lower appellate authority. Learned Sr. Counsel for the appellants has submitted that the issue of corrigendum to the order-in-appeal was in the nature of review of that order, but the appellate authority had no power of review. According to learned Counsel, the order-in-appeal should be examined without reference to the corrigendum and, in that event it should be held that the order of adjudication was set aside. The gist of the learned Counsel’s submission is that the impugned order is an open remand. We have heard the learned JCDR also, according to whom it was not the intent of the Commissioner (Appeals) to set aside the demand of duty of Rs. 38,49,776/-confirmed by the original authority.
3. After giving careful consideration to the submissions, we find that the judicial intent behind the impugned order is clearly discernible from para 10 and 11 read together. It was not the purpose of the learned Commissioner (Appeals) to set aside the demand of duty of Rs. 38,49,776/- vide para 10 of her order. The purpose was to direct the original authority to state valid reason for not having passed the order of adjudication within the period prescribed under Section 28(2A) ibid. However, we note that the means adopted by the appellate authority to sub serve the purpose (issuance of corrigendum to final order) was without sanction of law. In such circumstances, we think, it is incumbent on us to correct the jurisdictional error committed by the lower appellate authority. Accordingly, we set aside the impugned order and remand the case to the Commissioner (Appeals) with a direction to pass a fresh speaking order in accordance with law after giving the party a reasonable opportunity of being heard.
4. The appeal stands allowed by way of remand.
(Dictated and pronounced in open Court)