TaxTMI 
TaxTMI 
2016 (7) TMI 40
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.....No.491, which attracts duty at the rate of 20% + Nil + 2% + 4%, and at the time of assessment, the goods were classified under CTH 400110.10, which attracts higher duty and at the time of assessment, the same was not noticed by them. The appellant has contended that when they opted for reassessment of bill of entry, the same was not accepted by the Deputy Commissioner of Customs (DEEC), Customs House, Chennai and thus, in the abovesaid circumstances, an appeal was filed before the Commissioner of Customs (Appeals), Chennai, with delay. They has prayed to condone the delay, as a special case. That apart, they have also submitted an application for refund of excess duty. While considering the prayer for condonation, the Commissioner of Customs (Appeals), Chennai, has summariesed their case, as hereunder: "This is an appeal filed by M/s.Falcon Tyres Limited, Mysore-17 (hereinafter referred to as appellant) against the order of assessment in B/E.No.283864, dated 26.08.2006, in case of import of Natural rubber SIR 20 . The revenue classified the goods under CTH 40011010 at a rate of duty of 70% BCD + 0% CVD + 2% CESS and 4% Addl. Duty. Part consignment was allowed duty free clearance....
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....pur reported in 2008 (221) ELT 163 (SC), the impugned order is upheld. Appeal is rejected." Being aggrieved by the Final Order No.40100 of 2016, dated 25.01.2016, passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), South Zonal Bench, Chennai, under Section 129B of the Customs Act, 1962, r/w.Section 35C of the Central Excise Act, 1944 r/w. Section 86(7) of the Finance Act, 1994, instant Civil Miscellaneous Appeal is filed, on the following substantial questions of law, "(1) Whether the Tribunal was correct in traversing beyond the scope of the appeal filed by the appellant to hold that the note sheet challenged by them before the first appellate authority cannot be agitated as the same is neither an order nor issued to the appellant, when the said issue was not the subject matter of the order impugned in the appeal disposed of by the tribunal? (2) Whether the tribunal was correct in not considering the substantial issue involved in the subject case in the admitted collection of the excess customs duty on the goods imported without the authority of law, which the customs authorities suo mottu were required to refund by invoking the provisions u/s. 17 or at....
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....diction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court of other cause of a like nature. Explanation - For the purpose of this section, - a. in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted; b. a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; c. misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction." The said judgment rendered, with reference to Section 14 of the Limitation Act, cannot be made applicable to the facts of this case, for the reason that it is not a case of the appellant that they had prosecuted the appeal in some other Cour....
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....e in the instant appeal is factually incorrect. 7. Contention of Mr.N.Viswanathan, learned counsel for the appellant that the assessment made on 26.08.2006, was not opposed, due to inadvertant mistake and that therefore, the Tribunal ought to have condoned the delay, by applying the law laid down in the recent judgment of the Supreme Court in M.P.Steel Corporation v. Commissioner of Central Excise reported in 2015 (7) SCC 58, also cannot be countenanced, for the reason that admittedly, assessment has been made on 26.08.2006; refund application has been made on 23.12.2006; and application for permission to cancel OOC and re-assess the Bill of Entry, has been made only on 03.02.2007. In this regard, Office Note, dated 02.02.2007, has already been extracted. 8. Section 128 of the Customs deals with filing of appeals to the Commissioner (Appeals) and the said Section is extracted hereunder: "1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a Commissioner of Customs may appeal to the Commissioner (Appeals) within three months from the date of the communication to him of such decision or order : Provided that the Co....
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....e delay for further period of 30 days if sufficient cause for not presenting the appeal in time is shown and satisfied by the appellate authority. (b) Under no circumstances, the appellate authority has power to condone the delay beyond 30 days. (c) While the High Court exercising the jurisdiction under Article 226 of Constitution of India, approves the correctness of the order of the appellate authority, it has no power to direct the appellate authority to consider the appeal on merits as otherwise it would be nothing but Court extending the period of limitation. (d) Even if the High Court accepts the explanation given by the assessee for not filing the appeal within the period prescribed under the Act, it cannot direct the appellate authority to consider the matter on merits as the High Court exercising jurisdiction under Article 226 of Constitution of India, cannot re-write the provisions of the Act." It is worthwhile to extract the reported judgments considered in Indian Coffee Worker's Co-op. Society Ltd.,'s case (cited supra), which are reproduced hereunder: "In Mohd. Ashfaq v. State Transport Appellate Tribunal, U.P., [AIR 1976 SC 2161], the Supreme Court ....
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....ice for this purpose was sub-section (3). Does sub-section (3) expressly exclude further extension of time under Section 5? If it does, then Section 5 cannot be availed of by the appellant for condonation of the delay. Sub-section (3) in so many terms says that the Regional Transport Authority may condone the delay in making of an application for renewal and entertain it on merits provided the delay is of not more than 15 days. This clearly means that if the application for renewal is beyond time by more than 15 days, the Regional Transport Authority shall not be entitled to entertain it, or in other words, it shall have no power to condone the delay. There is thus an express provision in subsection (3) that delay in making an application for renewal shall be condonable only if it is of not more than 15 days and that expressly excludes the applicability of Section 5 in cases where an application for renewal is delayed by more than 15 days. " 11. It has to be noted that even though in the provisions of the Act (Section 58 of the Motor Vehicles Act of Uttar Pradesh), the wordings "condonable only if it is of not more than 15 days" are not there, the Supreme Court so held on the ba....
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....B] in which entry 24 [a] of the First schedule to the Andhra Pradesh General Sales Tax Act, 19 57 was declared unconstitutional. The appellate authority dismissed the appeal on the ground of delay. The Court ruled as under:- " If the special statute prescribed a particular period of limitation for preferring the appeal, the appeal has to be necessarily filed within that date. If there is a provision for condonation of delay and sufficient cause is shown, the appellate authority can condone the delay if it is satisfied with the reasons for the delay. The proviso to Section 19[1] as it originally stood empowered the appellate authority to admit an appeal after a period of 30 days, if it is satisfied that the dealer had sufficient cause for not preferring the appeal within the prescribed period of 30 days subject to the payment of the admitted tax due. Under the amended provision, the delay can only be condoned up to a further period of 30 days. " 14. In a recent Judgment, the Supreme Court of India, in Union of India v. M/s.Popular Construction Co., [2001 (4) CTC 213], considered Section 34 of Arbitration and Conciliation Act, 1996 and ruled that when the statue positively pres....
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....on clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only upto 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days p....
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....he appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days. Even otherwise, for filing an appeal to the Commissioner, and to the Appellate Tribunal as well as revision to the Central Government, the legislature has provided 60 days and 90 days respectively, on the other hand, for filing an appeal and reference to the High Court larger period of 180 days has been provided with to enable the Commissioner and the other party to avail the same. We are of the view that the legislature provided sufficient time, namely, 180 days for filing reference to the High Court which is more than the period prescribed for an appeal and revision. 20) Though, an argument was raised based on Section 29 of the Limitation Act, even assuming that Section 29(2) would be a....
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....ion of the order of the Appellate Tribunal for Electricity. In the reported case, the appellant challenged the order of the Central Regulatory Authority, before the Tribunal. Vide order, dated 17.05.2007, the Tribunal allowed the appeal. Being aggrieved, the appellant therein preferred an appeal before the Hon'ble Supreme Court. Along with the appeal, the appellant filed an application for condonation of delay of 160 days. Contentions were raised before the Hon'ble Apex Court that though the appeal was filed more than 140 days, counted from the date of Tribunal's order, in terms of the provisions to Section 125 of the Electricity Act, 2003, the Apex Court can extend the time to file an appeal to a maximum of 60 days only and the power under Section 5 r/w. Section 29(2) of the Limitation Act can be exercised for condonation of delay beyond the period of 120 days. Decision in Mukri Gopalan v. Cheppilat Puthuapurayil Aboobacker [(1995) 5 SCC 5] was pressed into service. Besides, a contention has also been made that, by virtue of the impugned order therein, huge liability has been fastened against the appellant and if the appeal is not entertained, it will suffer irreparabl....
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....s if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. (3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law. (4) Sections 25 and 26 and the definition of "easement" in Section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882 (5 of 1882), may for the time being extend." After considering several decisions, the Hon'ble Supreme Court, at Paragraphs 20, 25 to 27 and 32, held as follows: "20. Section 125 provides for an appeal to this Court against any order or decision of the Tribunal which can be filed within 60 days from the date of communication of the decision or order of the Tribunal. The limitation placed on the jurisdiction of this Court is that the appeal can be entertained....
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....l legislation within the meaning of Section 29(2) of the Limitation Act, which lays down that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the one prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and provisions contained in Sections 4 to 24 (inclusive) shall apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application unless they are not expressly excluded by the special or local law. 32. In view of the above discussion, we hold that Section 5 of the Limitation Act cannot be invoked by this Court for entertaining an appeal filed against the decision or order of the Tribunal beyond the period of 120 days specified in Section 125 of the Electricity Act and its proviso. Any interpretation of Section 125 of the Electricity Act which may attract applicability of Section 5 of the Limitation Act read with Section 29(2) thereof will defeat the object of the legislation, namely, to provide special limitation for filing an appeal against the decision or order of the Tribunal and proviso to Sect....
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.... the Commissioner of Service Tax that the period of limitation prescribed for hearing of the appeal, by the Appellate Tribunal, under Section 85(3) of the Finance Act, 1994, cannot be extended, and after referring to the decisions in Singh Enterprises v. Commissioner of Central Excise, Jamshedpur [2008 (221) E.L.T. 163 (SC)], JMJ Constructions v. Assistant Commissioner of Central Excise, Salem and others [(2012) 56 VST 256 (Mad.)], Earbis Engineering Co. Ltd., and another v. Deputy Commissioner of Sales Tax, Ballygunge Charge and another [(2012) 56 VST 258 (WBTT), Gopinath & Sharma v. CESTAT, Chennai [2013 (32) STR 172 (Mad.)] and Gopinath & Sharma v. CESTAT [2013 (32) STR J78(SC)], a Hon'ble Division Bench of this Court dismissed the Civil Miscellaneous Appeal. Substantial question of law, as to whether, the Tribunal ought to have condoned the delay and entertained the appeal, has been held against the appellant therein. There is no reason, as to why, the reported judgment cannot be made applicable to the instant appeal. (vii) In Saradha Travels v. Commissioner of Service Tax reported in 2015 (3) STR 433 (Mad.), an appeal was filed with a delay of one year and six months. The....
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.... for delaying proceedings or harassing the opposite party and was prosecuting their case with due-diligence and in good faith, the principles of Section 14 of the Limitation Act, 1963, should be applied even by the quasi judicial bodies exercising powers under Section 128 of Custom Act, 1962, thereby failing to follow the ratio of the said judgment and finding fault with the Commissioner of Customs (Appeals) for not considering and disposing of the application for condonation of delay, dated 29.03.2007/03.04.2007 filed by the appellant? 11. In the foregoing paragraphs, we have already discussed about the inapplicability of the above reported judgment in M.P.Steel Corporation v. Commissioner of Central Excise reported in 2015 (7) SCC 58, to the facts on hand. As the appeal filed before the Commissioner of Customs (Appeals), has been rejected, as time barred and confirmed by the CESTAT, Chennai, we are of the considered view that there is no obligation on the authorities to advert to the merits of the case. 12. Observation of the Tribunal that the appellant cannot agitate the order, dated 20.02.2007, as it was not issued to the appellant, though contended by the learned counsel, as....