ORDER
P.G. Chacko, Member (J)
1. The respondents had filed a Bill of Entry in the land Customs Station, Raxaul (Bihar) on 8-2-1986 for clearance, for home consumption, of a consignment of second hand machineries imported from Nepal under a Project Import Licence, claiming the benefit of concessional rate of duty applicable to Customs Tariff Heading 98.01 under Notification No. 230/86-Cus., dated 3-4-86. The Bill of Entry was noted in the Land Customs Station (LCS), Raxaul on 18-4-86 and clearance of the goods at concessional rate of duty was allowed by the Assistant Collector, LCS, Raxaul on 22-4-86 subject to observance of necessary formalities. The goods arrived at the LCS in five consignments in May-June 1986. As the party failed to produce utilization certificate, proceedings were initiated to deny the benefit of the above Notification to them. These proceedings resulted in an assessment order dated 22-7-88 of the Assistant Collector, LCS, Raxaul, whereby the goods were assessed as a regular import under Chapter 84 of the Customs Tariff instead of Project Import under Heading 98.01 and the assessable value was enhanced from Rs. 9.34 lakhs to Rs. 27.14 lakhs. On appeal filed by the assessee, the Collector of Customs (Appeals) remanded the case to the lower authority for de novo adjudication. The Assistant Collector, in the remanded proceedings, allowed project import clearance of the goods upon production of utilization certificate by the party, but confirmed the enhancement of assessable value. On the valuation issue, the assessee again went in appeal to the Collector (Appeals), who set aside the Assistant Collector’s order on the ground of denial of natural justice and remanded the case. On 22-1-91, the Assistant Collector, pursuant to the remand order of the appellate authority, passed a detailed order, wherein he reaffirmed the enhancement of assessable value and directed that duty be paid at the rates which were in force on the date of filing of the Bill of Entry. Aggrieved by this order of the Assistant Collector, the assessee preferred appeal to the Collector (Appeals). The Collector of Customs & Central Excise (Appeals), Calcutta allowed the appeal as per order dated 12-9-91, against which the department preferred appeal to this Tribunal. The order of the Collector (Appeals) was set aside on the ground of lack of jurisdiction and the case was remanded as per Final Order No. C/55/93-B2, dated 5-5-93. It was found that on 12-9-91 (when the above order was passed), the Collector (Appeals), Calcutta, had no jurisdiction to entertain the assessee’s appeal and that he got such jurisdiction w.e.f. 25-9-91 only vide Notification No. 64/91, dated 25-9-91. Pursuant to the Tribunal’s remand order, the Collector of Customs (Appeals), Calcutta passed order-in-appeal No. 32/93, dated 29-12-93 allowing the assessee’s appeal. The department filed the present appeal against the order dated 29-12-93 of the Collector (Appeals). The appeal was disposed of by the Tribunal as per Final Order No. 727/2000-B, dated 28-4-2000, [2000 (121) E.L.T. 211 (T)] which was challenged by the assessee before the Supreme Court in Civil Appeal No. 4772/2000 [2002 (142) E.L.T. 523 (S.C.)] on the ground of lack of notice. The Hon’ble Supreme Court by order dated 19-3-2002 was pleased to set aside the Tribunal’s order on the said ground and remand the case to us for fresh decision.
2. Heard both the sides. The learned DR submitted that the impugned order had’been passed by the Collector (Appeals) by adopting the earlier order dated 12-9-91 passed by his predecessor-in-office, without independent application of mind to the issues involved in the case. The DR also stated the issues involved, and addressed the same, relying on case law. The learned Advocate also argued on the issues, claiming support from certain decisions of the Tribunal. We think, it is not necessary to deal with the arguments on the merits of the case as the impugned order cannot be sustained on the preliminary ground raised in the appeal.
3. The impugned order reads as under :-
“This an appeal filed by the appellant for de novo consideration in pursuance of the Hon’ble Tribunal’s Order No. C/55/93-B2, dated 5-5-93. Brief facts of the case are narrated in the order-in-appeal No. Pat. C/Ex. (Cust.) 33/91, dated 12-9-91.
Shri Mistri, Partner appeared for personal hearing on 13-12-93, and narrated the case from its origin till the Tribunal’s order remanded the case here. He stated that the judgment was given in his favour but for the technicality regarding jurisdiction.
I have carefully considered the submissions offered on behalf of the appellants. The instant appeal has been filed for de novo consideration in pursuance of the Hon’ble Tribunal’s order dated 5-5-93. Shri Mistri, Partner of M/s. Manoj Construction Co., appeared for personal hearing and has narrated the matter in details.
I have gone through the case records and also my predecessor’s order in the matter dated 20-9-91. The following issues are involved in this :-
(i) Whether the date of determination of rate of duty shall be the date which is the actual date of landing of goods in India; or the date for rate of duty will be the date on which the bill of entry is presented.
(ii) Whether valuation of second-hand machinery adopted by the Assistant Collector of Customs in terms of the Standing Order No. 14/83 issued by the Collector of Customs, Calcutta, is correct or not.
On both the issues, my predecessor has given a well reasoned order. Especially, on the (ii) point, he has relied on a Tribunal’s decision in the case of Collector of Central Excise v. Fort William Co. Ltd. reported in 1989 (43) E.L.T. 339 (Tri.) which was precisely deals with the proposition that no Public Notice can supersede the statutory provision.
In view of the above, I do not find any reason to defer with the order of my predecessor and uphold the same as my order in the instant case in pursuance of the Hon’ble CEGAT’s order for de novo decision”.
The lower appellate authority has merely adopted the earlier order which was passed without jurisdiction. The earlier order dated 12-9-91 passed by the Collector (Appeals) had been held to have been passed without jurisdiction vide Final Order dated 5-5-93 of this Tribunal. Any order passed without jurisdiction, however reasoned it may be, is a non est in the eye of law and anything contained therein has no precedent or other value whatsoever. Therefore, the impugned order which merely “upheld” and adopted the non est and did not disclose any independent application of mind to the issues raised in the appeal has only to be set aside. We set aside the impugned order and allow this appeal by way of remand, directing the jurisdictional Commissioner of Customs (Appeals) to dispose of the appeal of the assessee on its merits after hearing them on the issues involved.