TaxTMI 
TaxTMI 
2024 (6) TMI 1429
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....f 2022 have been filed by Vishal Video and Appliances Pvt. Ltd. [the appellant] to assail the common order dated 24.05.2021 passed by the Principal Commissioner of Customs, ACC (Import) [the Principal Commissioner] that confirms the demand of Rs. 2,36,92,607/- and Rs. 2,17,62,591/- raised in the two show cause notices, both dated 26.09.2018, under section 28 of the Customs Act, 1962 [the Customs Act] with interest under section 28AA of the Customs Act. 2. Customs Appeal Nos. 50510 of 2021 to 50540 of 2021 have been filed by the appellant to assail the common order dated 17.12.2020 passed by the Commissioner of Customs (Appeals) [the Commissioner (Appeals)] that rejects the 31 appeals filed by the appellant on 17.12.2019 under section 128 of the Customs Act with an application under section 14 of the Limitation Act, 1963 [the Limitation Act] for reassessment of the 31 Bills of Entry filed by the appellant for import of mobile phones. 3. The appellant imported mobile phones during the period from 09.10.2014 to 17.07.2015 and paid Additional Duty of Customs at the rate of 6% up to 28.02.2015 and thereafter, at the rate of 12.5% under section 3(1) of the Customs Tariff Act 1975 [....
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....ification dated 01.03.2002 that was examined by the Supreme Court in SRF. It had, however, paid Additional Duty at the rate of 6% upto 28.02.2015 and at the rate of 12.5% thereafter. It therefore, filed two applications on 25.09.2015 for refund of the excess Additional Duty that was paid by it. The first application was filed for refund of Rs. 2,17,62,591/- for the period from 01.10.2011 to 25.03.2015 and the second application was filed for refund of Rs. 2,36,92,607/- for the period from 27.03.2015 to 17.07.2015. 6. These two refund applications were rejected by two separate orders, both dated 30.06.2016, on the ground that the appellant had not provided reassessed Bills of Entry. Both the said orders were assailed by the appellant before the Delhi High Court in Writ Petition No. 7851 of 2016 and the Delhi High Court, by judgment dated 05.09.2016, allowed the refund claim. The respondents were directed to pay the claimed amount together with interest due upto the date of refund, which payment was required to be made within three weeks from the date of the order. The relevant portion of the order passed by the Delhi High Court is reproduced below: "The writ petitioner s....
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....goods. Based on such verification we have satisfied ourselves." This was not a ground for rejection. We find no force in the submission. It is accordingly rejected. Since the facts are identical, we are of the opinion that the operative portion of the order should be identical to the one in Yu Televentures (supra). It is hereby directed consequently that the petitioner's refund claim is, therefore, allowed. The respondents are directed to pay to the petitioner, the claimed amount together with interest due thereof upto the date of refund - which shall be done within three weeks from today. There shall be no order as to costs." (emphasis supplied) 7. Pursuant to the aforesaid directions of the Delhi High Court, the Deputy Commissioner allowed the refund applications dated 27.09.2016. The relevant portion of the order dated 27.09.2016 in respect of 14 Bills of Entry relating to refund claim of Rs. 2,36,92,607/- is reproduced below: "Without prejudice to any of the above findings and without admitting anything to the contrary, since, the Hon'ble Delhi High Court vide judgment in W.P.(C) No. 7851/2016 in the case of M/s Vishal Video and Applian....
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....cation of mind in such a situation and merely an endorsement is made by the authorities concerned on the Bills of Entry which endorsement cannot be said to be an order, much less a speaking order. This contention of the assessees was not accepted by the Supreme Court and it was held that the endorsement made on the Bills of Entry would be an order of assessment and that when there is no lis, a speaking order is not required to be passed in 'across the counter affair'. The Supreme Court then examined the provisions of sections 17 and 27 of the Customs Act, both prior to and after the amendments made by Finance Act 2011, and observed that there is no difference even after the amendments as self-assessment is also an assessment. The observations of the Supreme Court are as follows: "38. No doubt about it that the expression which was earlier used in Section 27(1)(i) that "in pursuance of an order of assessment" has been deleted from the amended provision of Section 27 due to introduction of provision as to self-assessment. However, as self-assessment is nonetheless an order of assessment, no difference is made by deletion of aforesaid expression as no separate reasoned assess....
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....ed to adjudicate upon the entire issue which cannot be done in the ken of the refund provisions under Section 27. ***** 47. When we consider the overall effect of the provisions prior to amendment and post amendment under Finance Act, 2011, we are of the opinion that the claim for refund cannot be entertained unless the order of assessment or self assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of section 27 to set aside the order of self assessment and reassess the duty for making refund; and in case any person is aggrieved by any order which would include self assessment, he has to get the order modified under section 128 or under other relevant provisions of the Act. 48. Resultantly, we find that the order(s) passed by the Customs, Excise and Service Tax Appellate Tribunal is to be upheld and that passed by the High Courts of Delhi and Madras to the contrary, deserves to be and are hereby set aside. We order accordingly. We hold that the application for refund were not maintainable. The appeals are accordingly disposed of. Parties to bear their own coasts as incurred." ....
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....efund claimed by the appellant. However, the department filed Special Leave Petition No. 2865 of 2017 before the Supreme Court against the aforesaid judgment of the Delhi High and this petition was decided along with other matters by the Supreme Court on 18.09.2019 in ITC. What is important to notice is that prior to the decision of the Supreme Court in ITC, two demand cum show cause notices, each dated 26.09.2018, were issued by the Commissioner under section 28 of the Customs Act requiring the appellant to show cause why the erroneously sanctioned refund amount covering 31 Bills of Entry should not be recovered from the appellant. These two show cause notices had been issued in order to cover the period of limitation and it was also stated that the adjudication of these two notices would be subject to the outcome of the decision of the Supreme Court. A copy of the show cause notice was sent to the Deputy/Assistant Commissioner of Customs (Adjudication) to keep it in call book as it was a protective demand and was not to be adjudicated till the outcome of the decision of the Supreme Court. The Supreme Court decided the appeal filed by the department on 18.09.2019. These two show c....
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....03.2021 has held that in computing the period of limitation for any suit, appeal, application or proceeding under the general law of limitation or under any special laws (both Central or State), the period from 15.03.2020 till 14.03.2021 stands excluded and further held that in cases where the limitation would have expired during the period between 15.03.2020 till 14.03.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 15.03.2021. In continuation to the above order, while disposing off Miscellaneous Application No. 665/2021 in SMW (C) No. 3/2020, Hon'ble Apex Court vide order dated 27.04.2021 passed in exercise of powers under Article 142 read with Article 141 of the Constitution of India ordered that the periods(s) of limitation, as prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings, whether condonable or not, shall stand extended till further orders." The Court further held that this order shall be a binding order within the meaning of Article 141 on all Courts/Tribunals and Authorities. 5.5.6 From the above it becomes abundantly clear ....
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.... appellant assisted by Ms. Jyoti Pal and Ms. Anjali Gupta submitted that: (i) The time limit for adjudication of the show cause notices had lapsed prior to the date of passing of impugned orders. Elaborating this submission, learned counsel pointed out that under section 28(9A) of the Customs Act, the time specified in sub-section (9) is to be calculated from the date when the reason ceases to exist but it was not passed within 6 months from the date when the reason for keeping the adjudication on hold ceased to exists on 18.09.2019, on which date ITC was decided by the Supreme Court. The show cause notices were, therefore, required to be adjudicated by 17.03.2020, irrespective of the date of receipt of certified copy of the judgment but they were adjudicated on 24.05.2021; (ii) The order dated 08.03.2021 passed by the Supreme Court in suo-moto proceedings relating to Covid Pandemic would not be applicable in the present proceedings. A bare perusal of first order dated 23.03.2020 passed by the Supreme Court demonstrates that the said order was made applicable for institution of proceedings and not disposal thereof and in this connection reliance has been placed up....
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....rly be a case of 'erroneous refund'; (ii) In terms of the provisions of the Relaxation Act and the interim orders passed by the Supreme Court in suo-moto proceedings relating to Covid Pandemic, the period during which the show cause notices were required to be adjudicated stood extended and the impugned order was passed within the stipulated time; and (iii) There was no requirement for the department to challenge the refund sanctioning orders and the amount erroneously refunded could have been claimed by the department from the appellant under section 28 of the Customs Act. 21. The submissions advanced by the learned counsel for the appellant and the learned authorized representative appearing for the department have been considered. 22. The first issue that arises for consideration is whether the requirement of section 28(9) of the Customs Act that the proper officer should determine the amount of duty under section 28(8) within six months from the date of issuance of the show cause notice is satisfied in the facts and circumstances of the case. 23. To appreciate this contention it would be appropriate to examine the relevant provisions of section 28 of ....
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....contained in sub-section (9), where the proper officer is unable to determine the amount of duty or interest under sub-section (8) for the reason that- (a) an appeal in a similar matter of the same person or any other person is pending before the Appellate Tribunal or the High Court or the Supreme Court; or (b) an interim order of stay has been issued by the Appellate Tribunal or the High Court or the Supreme Court; or (c) the Board has, in a similar matter, issued specific direction or order to keep such matter pending; or (d) the Settlement Commission has admitted an application made by the person concerned, the proper officer shall inform the person concerned the reason for non-determination of the amount of duty or interest under sub-section (8) and in such case, the time specified in sub-section (9) shall apply not from the date of notice, but from the date when such reason ceases to exist." 28. It is seen that after the notice has been issued under sub-section (1) of section 28, the proper officer has to determine the amount of duty under sub-section (8), but this has to be done within six months from the date of notice as conte....
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.... abeyance ceased under section 28(9A). 17.03.2020 Six months time, for adjudicating the show cause notice from 18.09.2019 expired on 17.03.2020. 29.09.2020 Relaxation Act was promulgated. Under section 6 of the Relaxation Act, if the time limit falls between 20.03.2020 and 29.09.2020 for completion of any proceeding, it would stand extended to 30.09.2020. Subsequently, by Notification dated 30.09.2020, the time limit was extended upto 31.12.2020. 23.03.2020, 08.03.2021, 27.04.2021 and 23.09.2021 The Supreme Court in suo-moto proceedings relating to Covid Pandemic ordered that the period from 15.03.2020 till 02.10.2021 shall stand excluded in computing the period prescribed under any law for instituting proceedings, outer limits (within which the Court or Tribunal can condone the delay), and termination of proceedings. 30.06.2021 The Commissioner sought extension for adjudication of show cause notices in terms of the proviso to section 28(9), and the time period was extended by the Chief Commissioner upto 30.06.2021. 24.05.2021 Impugned order was passed confirming recovery of the refund amount. 31. The adjudication of the two show cause notices....
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....he time period in the present case because in normal circumstance at least three days time is required to obtain copy of the judgment of the Supreme Court and so the period would fall on or after 20.03.2020. 35. It is not possible to accept this finding of the Principal Commissioner in view of the specific provisions of section 28(9A) of the Customs Act which provides that the time specified under sub-section (9) of six months shall not apply from the date of notice, but from the date when such reason ceases to exist. In the present case, the reason ceased to exist on 18.09.2019 when the Civil Appeal filed by the department against the judgment of the Delhi High Court was decided by the Supreme Court. Thus, the time period has to be counted from 18.09.2019 only. 36. The Principal Commissioner has also placed reliance upon the interim orders passed by the Supreme Court in suo-moto proceedings relating to Covid Pandemic to hold that the time period for adjudicating the show cause notices stood extended and the adjudication was within time. 37. In the first order in Suo Motu Writ Petition (Civil) No(s). 3 of 2020 dated 23.03.2020, the Supreme Court took suo-moto cognizance of....
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....in the aforesaid order dated 08.03.2021. The said order is reproduced below: "1. Due to the onset of COVID-19 pandemic, this Court took suo motu cognizance of the situation arising from difficulties that might be faced by the litigants across the country in filing petitions/applications/suits/appeals/allother proceedings within the period of limitation prescribed under the general law of limitation or under any special laws (both Central or State). By an order dated 23.03.2020 this Court extended the period of limitation prescribed under the general law or special laws whether compoundable or not with effect from 15.03.2020 till further orders. The order dated 23.03.2020 was extended from time to time. Though, we have not seen the end of the pandemic, there is considerable improvement. The lockdown has been lifted and the country is returning to normalcy. Almost all the Courts and Tribunals are functioning either physically or by virtual mode. We are of the opinion that the order dated 23.03.2020 has served its purpose and in view of the changing scenario relating to the pandemic, the extension of limitation should come to an end. 2. We have considered the suggest....
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....aji M. Jadhav, President SCAORA in support of the prayer made in this application. Learned Attorney General and Learned Solicitor General have also given their valuable suggestions. We also take judicial notice of the fact that the steep rise in COVID-19 Virus cases is not limited to Delhi alone but it has engulfed the entire nation. The extraordinary situation caused by the sudden and second outburst of COVID-19 Virus, thus, requires extraordinary measures to minimize the hardship of litigant-public in all the states. We, therefore, restore the order dated 23rd March, 2020 and in continuation of the order dated 8th March, 2021 direct that the period(s) of limitation, as prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings, whether condonable or not, shall stand extended till further orders. It is further clarified that the period from 14th March, 2021 till further orders shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Inst....
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....eriod between 15.03.2020 till 02.10.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 03.10.2021. In the event the actual balance period of limitation remaining, with effect from 03.10.2021, is greater than 90 days, that longer period shall apply. III. The period from 15.03.2020 till 02.10.2021 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings. *****" (emphasis supplied) 42. The show cause notices, therefore, in view of the orders dated 08.03.2021, 27.04.2021 and 23.09.2021 could have been adjudicated upto 02.10.2021 and in the present case they were adjudicated on 24.05.2021. Thus, the show cause notices were adjudicated within time. It is also seen that the Chief Commissioner ....
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....r in the show cause notice that the adjudication of these two show cause notices would be subject to the outcome of the decision of the Supreme Court. The Deputy Commissioner was also directed to keep the adjudication of these two show cause notices in the call book as it was a protective demand and the same was not to be adjudicated till the decision of the Supreme Court. 48. The issue as to whether it was a case of erroneous refund could be finally determined only after the decision of the Supreme Court. This is for the reason that the issue as to whether the appellant could straight away claim refund on the basis of the judgment of the Supreme Court in SRF, or it was incumbent upon the appellant to challenge the assessment by filing an appeal to the Commissioner (Appeals) for claiming refund was to be decided by the Supreme Court in the appeal filed by the department. It cannot, therefore, be urged by the appellant that since it was not a case of erroneous refund on the date the show cause notices were issued, it was not permissible for the department to issue the show cause notices. The Supreme Court ultimately held that refund could be claimed only after the assessment orde....
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....f Entry, the proper officer has another option of issuing a show cause notice under section 28 of the Customs Act to demand and recover duties erroneously refunded. This is clear from a plain reading of section 28 of the Customs Act and in Collector of Central Excise, Kanpur vs. Flock (India) Pvt. Ltd. [2000 (120) E.L.T. 285 (S.C.)], the Supreme Court also held that an assessment can be modified either through an appeal or under section 28 of the Customs Act. This legal position was reiterated by the Supreme Court in Priya Blue Industries Ltd. vs. Commissioner of Customs (Preventive) [2004 (172) E.L.T. 145 (S.C.)] and the relevant observations of the Supreme Court are reproduced below: 6. We are unable to accept this submission. Just such a contention has been negatived by this Court in Flock (India)'s case (supra). Once an Order of Assessment is passed the duty would be payable as per that order. Unless that order of assessment has been reviewed under Section 28 and/or modified in an Appeal that Order stands. So long as the Order of Assessment stands the duty would be payable as per that Order of Assessment. A refund claim is not an Appeal proceeding. The Officer consider....
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....e refund order by filing an appeal before the Commissioner (Appeals). 56. It is, therefore, not possible to accept the contention of the learned counsel for the appellant that order dated 24.05.2021 should be set aside for the sole reason that it was passed beyond the time period contemplated under section 28(9) of the Customs Act. CUSTOMS APPEAL NO's 50510 TO 50540 OF 2021 57. The appellant had filed 31 appeals before the Commissioner (Appeals) on 17.12.2019 under section 128 of the Customs Act for re-assessment of the 31 Bills of Entry filed for import of mobile phones during the period from 07.10.2014 to 17.07.2015. The appeals were required to be filed within 60 days from date of communication of the decision or order, and a delay of 30 days beyond this period could only be condoned. These appeals were accompanied by an application under section 14 of the Limitation Act, 1963 [the Limitation Act] seeking exclusion of the time period from the date of out of charge of the respective Bills of Entry till the date of judgment of the Supreme Court in ITC on 18.09.2019. The Commissioner (Appeals) dismissed all the 31 appeals by a common order dated 17.12.2020 holding that the....
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....nd application was filed with correct authority and there was no defect in jurisdiction. Thus, section 14 does not remain applicable in the present case. The refund application were rejected by the competent authority on certain grounds which has been upheld by the Hon'ble Supreme Court in ITC case [2019 (368) E.L.T. 216 (S.C.)]. So the Appellant cannot take shelter under section 14 of the Limitation Act, 1963 to claim that they were pursuing matter before wrong forum. Thus, the Appellant fails in second requirement of section 14 of the Limitation Act, 1963. 5.7 It also needs to be seen whether filing of refund application instead of challenge to self-assessment was in good faith and with due diligence or not. 5.7.1 ***** Since as per law laid down in Priya Blue (Supra) and Flock (India) Pvt. Ltd., they were not required to challenge the self assessment first before claiming refund, which they could not have done due to limitation, they took path of refund application where period was one year. Thus, the Appellant took/choose wrong path for his financial gains ignoring the law laid down by the Hon'ble Apex Court and choosing to rely upon case of Aman Medicals. ***....
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....en decided on merits. 60. The Commissioner (Appeals), as noticed above, held that the conditions stipulated in section 14 of the Limitation Act were not satisfied by the appellant for the reason that the matter that was earlier pursued by the appellant before the department related to refund of Additional Duty and not re-assessment of Bills of Entry, which relief had been claimed in the appeals filed before the Commissioner (Appeals), and even if it is assumed that the appellant was pursuing the same matter, the refund applications were filed before the correct authority and there was no defect in jurisdiction. The Commissioner (Appeals) also held that the appellant was required to challenge the self-assessment before claiming refund and so the filing of the refund applications instead of challenging the assessment was not in good faith and was out of commercial consideration to reap the benefits arising out of the decision of the Supreme Court in SRF. 61. It is this order dated 17.12.2020 passed by the Commissioner (Appeals) that has been assailed in these appeals. 62. Learned counsel for the appellant made the following submissions: (i) The appellant had filed t....
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..... 65. The appellant had imported mobile phones during the period from 09.10.2014 to 17.07.2015 and paid Additional Duty of customs @ 6% upto 28.02.2015 and thereafter @ 12.5% on the 31 Bills of Entry. In view of the judgment of Supreme Court in SRF, the appellant believed that it was liable to pay Additional Duty @ 1% only. It, therefore, filed two applications on 25.09.2015 for refund of the excess Additional Duty that was paid. The first application was for refund for the period from 01.10.2011 to 25.03.2015 towards 14 Bills of Entry and the second application for refund for the period from 27.03.2015 to 17.07.2015 for the 17 Bills of Entry. These two refund applications were rejected by orders dated 30.06.2016, but these orders were challenged by the appellant before the Delhi High Court in a Writ Petition and by a judgment dated 05.09.2016 the refund was directed to be paid to the appellant. The Deputy Commissioner, in terms of the directions issued by the Delhi High Court, allowed the refund applications by order dated 27.09.2016. The department, however, challenged the judgment of the Delhi High Court before the Supreme Court and the Supreme Court allowed the appeal in ITC....
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....with due diligence another proceeding which proves to be abortive because it is without jurisdiction, or otherwise no decision could be rendered on merits, the time taken in such proceeding ought to be excluded as otherwise the person who has approached the Court in such proceeding would be penalized for no fault of his own. This judgment does not further the case of Shri Viswanathan in any way. The question that has to be answered in this case is whether suits, appeals or applications referred to by the Limitation Act are to be filed in Courts. This has nothing to do with "civil proceedings" referred to in Section 14 which may be filed before other Courts or authorities which ultimately do not answer the case before them on merits but throw the case out on some technical ground. Obviously the word "Court" in Section 14 takes its colour from the preceding words "civil proceedings". Civil proceedings are of many kinds and need not be confined to suits, appeals or applications which are made only in Courts stricto sensu. This is made even more clear by the explicit language of Section 14 by which a civil proceeding can even be a revision which may be to a quasi-judicial Tribunal unde....
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....re, which is of direct relevance in this case, is that for revision petitions filed under the U.P. Sales Tax Act a sufficiently long period of 18 months had been given beyond which it was the policy of the legislature not to extend limitation any further. This aspect of Parson Tools has been explained in Consolidated Engineering in some detail by both the main judgment as well as the concurring judgment. In the latter judgment, it has been pointed out that there is a vital distinction between extending time and condoning delay. Like Section 34 of the Arbitration Act, Section 128 of the Customs Act is a Section which lays down that delay cannot be condoned beyond a certain period. Like Section 34 of the Arbitration Act, Section 128 of the Customs Act does not lay down a long period. In these circumstances, to infer exclusion of Section 14 or the principles contained in Section 14 would be unduly harsh and would not advance the cause of justice. It must not be forgotten as is pointed out in the concurring judgment in Consolidated Engineering that: "Even when there is cause to apply Section 14, the limitation period continues to be three months and not more, but in computing ....
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.... differential customs duty on 1561 tons. On 25.03.1992, the Collector directed the Assistant Collector to encash the bank guarantee and on 02.04.1992, the Superintendent sent a letter to the appellant communicating the decision of the Collector. The bank guarantee was thereafter enchased on 03.04.1992. The appellant preferred an appeal before the Tribunal on 22.06.1992 against the letter dated 02.04.1992 sent by the Superintendent and the order dated 25.03.1992 passed by the Collector. The Tribunal, by order dated 23.06.1998, allowed the appeal and set aside the order dated 25.03.1992 passed by the Collector. This order of the Tribunal was assailed by the department before the Supreme Court. On 12.03.2003, the Supreme Court allowed the appeal filed by the department holding that: "In our view, the reasoning of CEGAT cannot be sustained. The decision taken by the Collector was not taken in his capacity as Collector (Appeals). Also the order by which respondent is aggrieved is the order passed by the Superintendent. An appeal against that order has to be filed before the Commissioner (Appeals) under Section 128. By virtue of Section 129A, CEGAT has no jurisdiction to enterta....
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.... It is clear that both the prior and subsequent proceedings are civil proceedings prosecuted by the same party. The prior proceeding had been prosecuted with due diligence and in good faith, as has been explained in Consolidated Engineering itself. These phrases only mean that the party who invokes Section 14 should not be guilty of negligence, lapse or inaction. Further, there should be no pretended mistake intentionally made with a view to delaying the proceedings or harassing the opposite party. On the facts of this case, as the earlier Supreme Court order dated 12-3-2003 itself points out, there was some confusion as to whether what was appealed against was the Superintendent's order or the Collector's order. The appellant bona fide believed that it was the Collector's order which was appealed against and hence an appeal to CEGAT would be maintainable. This contention, however, ran into rough weather in this Court. Further, the time taken between 3-4-1992 and 22-6-1992 to file an appeal cannot be said to be inordinately long. Thus, neither was there any negligence, lapse or inaction on facts nor did the appellant delay proceedings to harass the Department by pretending that the....
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....before CEGAT which was allowed in its favour by CEGAT on 23-6-1998. The Department preferred an appeal against the said order sometime in the year 2000 which appeal was decided in their favour by this Court only on 12-3-2003 by which CEGAT's order was set aside on the ground that CEGAT had no jurisdiction to entertain such appeal. The time taken from 12-3-2003 to 23-5-2003, on which date the present appeal was filed before the Commissioner (Appeals) would be within the period of 180 days provided by the pre-amended Section 128, when added to the time taken between 3-4-1992 and 22-6-1992. The amended Section 128 has now reduced this period, with effect from 2001, to 60 days plus 30 days, which is 90 days. The order that is challenged in the present case was passed before 2001. The right of appeal within a period of 180 days (which includes the discretionary period of 90 days) from the date of the said order was a right which vested in the appellant. A shadow was cast by the abortive appeal from 1992 right upto 2003. This shadow was lifted when it became clear that the proceeding filed in 1992 was a proceeding before the wrong forum. The vested right of appeal within the period of 18....
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....ected that refund applications should be allowed and refund should be sanctioned. It is only when the Supreme Court reversed the decision of the Delhi High Court and observed that refund could only be granted pursuant to proceedings taken in appeal that the appellant filed the appeals before the Commissioner (Appeals). The Commissioner (Appeals) was not justified in holding that the appellant was not entitled to exclusion of the time period under section 14 of the Limitation Act as the requirements were not satisfied. The requirements, as noticed above, were satisfied by the appellant and this is what emerges from the decision of the Supreme Court in M.P. Steel. The appellant had re-sorted to abortive proceedings before the Deputy Commissioner as was ultimately held by the Supreme Court in ITC. The time taken in prosecuting such an abortive proceeding would have to be excluded under section 14 of the Limitation Act. It cannot be urged that there was any negligence on the part of the appellant in filing refund applications before the Deputy Commissioner. It cannot also be urged that the earlier proceedings and the present proceedings do not relate to the same matter. In fact both th....
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....was held by the Supreme Court in Singh Enterprises vs. CCE, Jamshedpur [2008 (221) E.L.T. 163 (SC)]. The Supreme Court examined the provisions of section 35 of the Central Excise Act, 1944, which are pari materia to the provisions of section 128 of the Customs Act and observed that the delay can be condoned in accordance with the language of the Statute which confers power on the Appellate Authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days, which is normal period for preferring the appeal. It is for this reason that the Supreme Court observed that the Commissioner and the High Court were justified in holding that there was no power to condone the delay after expiry of 30 days period and that the provisions of section 5 of the Limitation Act would not be applicable. Paragraphs 8, 9 and 10 of the judgment of the Supreme Court are reproduced below: "8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of Statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the Statute. The period upto which the prayer for condonation can be accepted is statutorily....