TaxTMI 
TaxTMI 
2025 (7) TMI 420
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..../2021 dated 16.09.2021 under which the Anti Dumping Duty on Aluminium Foil of 6.3 Microns is exempted. 2. Accordingly, appellant preferred an application dated 12.10.2022 vide Letter dated 12.10.2022 seeking reassessment of impugned Bill of Entry dated 21.09.2022 and also another application seeking refund of excess duty paid amounting to Rs.7,14,018/- (Anti Dumping Duty of Rs.6,05,100/- + differential IGST of Rs.1,08,918/-). However, the Adjudicating Authority vide Order-in-Original bearing No. 148/2022 dated 19.12.2022 rejected the application for reassessment of BOE for the reasons that in terms of Section 128 of the Customs Act it should be filed before the appellate authority. It also rejected the refund claim citing Hon'ble Supreme Court in the case of M/s Priya Blue Industries Ltd. vs Commissioner of Customs (Prev.) as reported in [2004(172) ELT 145 (S.C.)]. This order was challenged before Commissioner (Appeals) seeking reassessment of BOE while praying for exclusion of the time spent in pursuing the application seeking reassessment of impugned BOE dated 21.09.2022 before original adjudicating authority. Thus the time from 12.10.2022, the date of application praying reas....
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....sessment is appealed, no refund application against the assessed duty can be entertained. Earlier also Hon'ble Supreme Court in the case of M/s Priya Blue Industries Ltd. vs Commissioner of Customs (Prev.) as reported in [2004 (172) ELT 145 (S.C.)] held that a refund claim is not an Appeal proceeding. The Officer considering a refund claim cannot sit in Appeal over an assessment made by a competent Officer. The officer while considering the refund claim cannot review an assessment order. Hence there is no infirmity in the impugned order rejecting both the applications i.e. one for seeking reassessment of BOE and another for seeking refund of amount of ADD/IGSP paid. With these submissions Ld. Departmental Representative has requested for the appeal to be dismissed. 6. Having heard the rival contentions, perusing the record and the decisions referred by the adjudicating authorities below and those relied upon by the appellant, I observe that: 6.1 The Commissioner (Appeals) dismissed the first appeal vide the order under challenge on the following grounds: (i) Section 14 of the Limitation Act applies only where prior proceedings were pursued before a court or authority lacki....
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..... It reads as follows: (i) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (ii) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. From the perusal of the said provision, I observe that following are the requirement to get benefit of Section 14 of the Limitation Act: (i) The litigant has been prosecuting with due diligence another proceedings; (ii) The proceeding can be in th....
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.... notice that practically the revenue refuses to accept such an application unless the same has been approved by the appellate court. Perusal of these provisions makes it clear that the assessing officer/appraiser herein could reassess the BOE only prior the good, imported are not cleared for home consumption. Therefore, it is an appeal only which is maintainable in terms of Section 128 of the Customs Act. It becomes clear that the appellant filed the application before original adjudicating authority in good faith. However, the authority did not consider itself competent. Hence the time taken for getting the order with respect to request for reassessment of BOE is held to be the cause of the like nature of jurisdiction issue. Therefore, I hold that the benefit under Section 14 of Limitation Act be awarded to the applicant/appellant. The Commissioner (Appeals) has not given any finding with respect to Section 14 of Limitation Act. Issue No. 1 stands accordingly decided in favour of the appellants. 6.4 Issue No. 2 6.4.1 Coming to the merits of the case, it is observed that the request seeking refund of excess paid ADD has been rejected based on the decision of Hon'ble ....
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....t remediless, therefore, we refrain ourselves from examining the merits of CLMA. It is a trite law that the procedural defect may fall within the purview of irregularity and capable of being cured, but it should not be allowed to defeat the substantive right accrued to the litigant without affording reasonable opportunity. Therefore, in our considered view, no adjudication of the CLMA application, and upholding the preliminary objection of no maintainability of one appeal by High Court has caused serious prejudice to the appellant." 6.4.3 In Krishna Kumar Kahaar & Anr. v. Dashoda Bai Dhivar&Anr. (WP227 No. 467 of 2023, Chhattisgarh High Court), the Hon'ble High Court reaffirmed that procedural defects, if curable, should not be allowed to defeat substantive rights or result in injustice. The Hon'ble Court directed the Rent Control Authority to rectify procedural lapses and adjudicate the matter afresh. Even this tribunal in Maini Precision Products Ltd. v. Commissioner of Central Tax (CE Appeal No. 20099 of 2020,CESTAT Bangalore) held that procedural lapses, such as non-distribution of credit, are condonable, especially in re-venueneutral situations, and should not affect substa....