TaxTMI 
TaxTMI 
2014 (6) TMI 336
X X X X Extracts X X X X
X X X X Extracts X X X X
....mp-402 dated 31/12/2010 passed by the Commissioner of Customs (Appeals), Nhava Sheva, Mumbai-11. 2. The appellant MIs. Jindal Drilling & Industries Ltd. filed a Bill of Entry No. 931186 dated 06/06/200 for import of 'Oil Well Supplies' falling under Chapter 84 of the Customs Tariff Act. The Bill of Entry was assessed to duty on second check basis on 09/06/2009 pending payment of duty and examination of goods and out of charge order. The appellant paid Customs duty assesses on 16/06/2009, the goods were examined by the Customs on 17/06/2009 and the out of charge was given. It was noticed that the foreign supplier had charged for 550 pieces of the goods whereas the actual quantity of goods received was only one piece. Thus there was ov....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... from the date of order for out of charge after payment of duty and examination of goods and not from the date of assessment of the Bill of Entry. In the instant case, the out of charge was given on 17/06/2009 and the appeal has been filed on 14/09/2009 and, therefore, the appeal has been filed within the condonable period of 30 days after the expiry of 60 days for filing of the appeal and hence the appeal could not have been dismissed as time barred. He relies on the decision of this Tribunal in the case of Sterilite Optical Technologies Ltd. vs. Commissioner of Central Excise, Aurangabad 2007 (213) ELT 658 (Bom.); Mangalore Refinery & Petrochemicals Ltd. vs. Commissioner of Central Excise 2012 (278) ELT 289 (Kar.) and Bansal Alloys & Meta....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ises vs. Commissioner of Central Excise, Jamshedpur 2008 (221) ELT 163 (SC) in support of his, contention that the appeal is time barred. 5. We have carefully considered the rival submissions. There is no dispute about the fact that the goods have been assessed to duty on 09/06/2009 and the assessment order was passed on that date. It is an entirely different matter that the appellant paid the duty subsequently and got the goods cleared after examination by the Customs and out of charge order was issued on 17/06/2009. As per Section 128 of the Customs Act, "any person aggrieved by any decision on order passed under this Act by an officer of Customs lower in rank than a Commissioner of Customs, may appeal to the Commissioner (Appeals) wit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....otherwise that any statement in such entry or document or any information so furnished is not true in respect of any matter relevant to the assessment, the goods may, without prejudice to any other , action, which may be taken under this, Act, be re-assessed to duty. 5.2. In the present case; it is seen that there Was no re-assessment done after examination. From the provisions of law cited above, it is clear that the assessment was complete on 09/06/2009 though payment of duty, examination of the goods and out-of-chargewas done later. 5.3. An identical issue came up before this Tribunal for consideration in Payal Petropack Pvt. Ltd. (cited supra) and this Tribunal held as follows: "3.1 From the records of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d that the delay in filing the appeal has been condoned. A delay can be condoned provided there is power given to the appellate authority to condone the delay. The appellate authority has power to condone the deiay only if the appeal is filed within a period of 30 days from the expiry of the time-limit of 60 days for filing the appeal. If the appeal is filed after the lapse of 90 days, there is no power vested with the Commissioner (Appeals) to condone the delay. If the Commissioner (Appeals) does not have any power to condone the delay, it cannot be presumed that he has condoned the delay. 5.5. The hon'ble apex Court in the case of Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur cited supra, held that: &nbs....
X X X X Extracts X X X X
X X X X Extracts X X X X
....es the whole procedure laid down under the Act for imposing duty liability upon the manufacturer or importer. The word assessment is, thus, capable of bearing a very comprehensive meaning; in the context, it can comprehend the whole procedure for ascertaining and imposing duty liability. The word "levy" was interpreted by the Supreme Court in the case of Asstt. Collector of Central Excise v. National Tobbaco of India Ltd. 1978 (2) FLT (J 416) = AIR 1972 SC 2563 as embracing within it the process of assessment and also imposition of tax. The term `levy' appears to be wider in it's import than the term `assessment'. It may include with `imposition' of tax as well as `assessment'." Nowhere the hon'ble High; Court held t....