Page 176 - ELT_3rd_1st May 2020_Vol 372_Part

398 EXCISE LAW TIMES [ Vol. 372

with one of components of fourth - Assessee’s claim that two containers
cleared by it should also be entitled to benefit of refund of duty - No evidence
on the record to show that goods that were taken into its possession were same
as that which was cleared - Goods neither re-exported nor destroyed in com-
pliance with Section 26A ibid - Relinquishment of title not permissible in re-
spect of goods already cleared - Claim for refund of Section 26A ibid limited
only to those which goods were not cleared and acknowledged as relinquished
- Non-consideration of claim in relation to goods cleared by assessee, proper.
[para 6]
Appeal - Commissioner (Appeals) - Powers - Scope of - Relinquish-
ment of goods - Issue before first Appellate Authority in appeal by importer
limited to non-disposal of assessee’s claim in relation to goods already cleared
for relinquishment and refund under Section 26A of Customs Act, 1962 - Not
open to first Appellate Authority to revisit decision-taken in favour of as-
sessee save on Appeal Authorised by Commissioner of Customs - Direction to
Additional Commissioner for further disposition of goods that remain not
cleared set aside - No flaw in non-consideration of claim in relation to goods
cleared by assessee - Section 128 of Customs Act, 1962. - Moreover, proviso to Sec-
tion 128(3) of Customs Act, 1962 empowers the issue of show cause notice only for en-
hancing penalty or any other detriment or for rejection of refund sanctioned by the origi-
nal authority. Proceedings that lie before the original authority can be initiated only un-
der Section 28 of Customs Act, 1962 or under Section 124 of Customs Act, 1962 - Nei-
ther of these envisages Commissioner of Customs (Appeals) as the ‘proper officer’. Conse-
quently, the notice contemplated by proviso to Section 128(3) of Customs Act, 1962 is
limited to enhancement or reduction, as the case may be, within the confines of the notice
that commenced proceedings leading to the appeal. In other words, the extent of en-
hancement or reduction was limited to such as were proposed in the original notice; there
is no empowerment in Section 128 of Customs Act, 1962 for a new proceedings or cause
of action. Such would also not constitute an enhancement and, therefore, the issue of
show cause notice leading to the specific direction in the impugned order is beyond the
pale of law. [paras 5, 6, 7]
Appeal partly allowed
REPRESENTED BY : Shri Girish Nadkarni, Advocate, for the Appellant.
Ms. Trupti Chavan, AC (AR), for the Respondent.
[Order per : C.J. Mathew, Member (T)]. - This appeal of M/s. Canpex
Chemicals Pvt. Ltd. arises from Order-in-Appeal No. 297 (G.VII-
D)/2013/JNCH/EXP-90 dated 22nd May, 2013 of Commissioner of Customs
(Appeals), Mumbai-II, Nhava Sheva in which the communication of Deputy
Commissioner of Customs, Jawaharlal Nehru Customs House, acknowledging
relinquishment of title to the goods lying uncleared had been accepted, was di-
rected to be withdrawn while dismissing their pleas for further relief.
2. According to the appellant, who had imported five containers of ‘di-
cyandiamide’ from M/s. Shenyang Aimixin Chemicals Ltd., China, against Bill
of Entry No. 3883010, dated 23rd June 2011, 57.18 MT out of total quantity of
100MT had been taken delivery of after assessment was duly completed and du-
ty liability discharged. It is claimed that the consignment, upon being subject to
testing and found to contain ‘sodium chloride’, was not in conformity with the
sale contract and they had sought relinquishment under Section 26A of Customs
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