JUDGMENT
G.A. Brahma Deva, J.
1. There are 12 appeals filed by the Appellants M/s. MRPL against a common impugned order involving a common issue. Hence all these appeals are taken together for hearing and are being disposed of by this common order.
2. Shri Rajesh Chandra Kumar learned Counsel appearing for the appellant submitted that the point to be considered in this case is whether assessments made on BE is an appealable order or not. It was submitted by him that in the case of Khemka Travel vs. CC Bombay [1991 (36) ECC 217 (SB), it was held that assessments made on Bill of Entry is an appealable order. It was held therein that the adjudicating authority has passed an order on Bill of Entry. The order on the Bill of Entry would have to be treated as an order and as such the instant appeal against the assessment to be maintainable. In this case, the Commissioner has dismissed the appeal on the ground that assessment made on BE was not an appealable order. He also submitted that even on merits also the decision referred by the Tribunal is in favour of the party. He fairly conceded that the Commissioner (Appeals) has not decided the case on merits and dismissed the appeal on maintainability.
3. Shri Narasimhamurthy learned DR appearing for the Revenue drew our attention to paras 3 & 4 of the impugned order which are as under:-
“3. After going through the respective files, the learned Advocate was asked as to how the photo copies of the B/E which refers to the into-bond B/E could be considered as finalization of the provisional assessment when the same was not supported by any order passed by the proper officer in terms of Sec.18 taking into account the ex-bond quantities. He however, did not throw any light for proper appreciation of the appeal filed, even though a statement has been made in the memorandum of appeal that the assessment order recorded in the B/E which have alleged to have been finalized by the Customs Authorities without according an opportunity of hearing was also accompanied by the exbond B/E with the assessment order in all these appeals, it is observed that the photo copies enclosed do not clearly bring out whether they are intobond B/E or ex-bond B/E. it is also noticed that wherever the type of B/E is visible in the photo copy, they all pertain to the into-bond B/E where the quantity and the duty were raised to upwards. The learned Advocate has also submitted that the refund application decided by the proper officer through an Order-in-Original has been challenged separately. The earlier decision of the
Commissioner (Appeals) on the same issue is pending before the CEGAT which is likely to pass the order shortly.
4. The submissions made by the appellant in writing and those presented by the Advocateduring the hearing and the memorandum of appeal in all these cases and the relevant B/Es enclosed thereof have all been considered and examined by me carefully. Even though in the memorandum of appeal of each case it has been mentioned that the relevant assessment orders are recorded taking into account the into-bond B/E, from majority of the 12 appeals, it is observed that they are all into-bond Bs/E, and therefore, the question of finalization of the assessment on the basis of the into-bond B/E will not arise. Moreover, for finalizing the assessment in terms of Sec.18, the proper officer should take into account all the materials submitted by the appellant and pass a detailed speaking order. The appellant did not enclose such speaking order. It also appeared that on the basis of assessment order finalized, through issue of Show Cause Notice and an order-in- original, the appellants have already separately filed an appeal which is pending.”
5. We have carefully considered the matter. We find that it is settled position now thatassessment made on Bill of Entry is an appealable order. In view of this, the impugned order is not sustainable in the eye of law since the Commissioner has not decided the case on merits, and in the view we have taken that appeals are maintainable, we are remanding all these matters to the concerned Commissioner (Appeals) to decide the case on merits and to pass an appropriate order in accordance with law on providing an ooportunity to the party. Thus these appeals are disposed of in the above terms.