TaxTMI 
TaxTMI 
TaxTMI 
2025 (12) TMI 388
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....rom the payment of basic Customs duty under S. No. 696 of Notification No.53/2011-Customs dated 01.07.2011. As the appellants were not in possession of Certificate of Origin (COO) at the time of filing the bills of entry, they cleared the goods by paying merit rate of duty. Subsequently, on receipt of the said COO, the appellants requested the Dy. Commissioner of Customs (Refunds) vide their letter dated 02.05.2018 to grant refund. The Dy. Commissioner of Customs, Group-5 vide letter in F.No.S.Misc.189/2016-Gr.5 dated 06.02.2020 informed the appellants in response to the CP Grams sent by them stating that "no re-assessment shall be allowed unless the order of assessment including self-assessment is duly modified by way of appeal. 2.2 Aggrieved, the Appellants filed Appeals before the Commissioner of Customs (Appeals II), Chennai who after due process of Law, rejected the Appeals. 2.3 Aggrieved once again, the Appellant is before this Tribunal by filing three Appeals as detailed below: - Sl. Nos. Appeal No. OIA No. & Date Bill of Entry No. Amount of Duty 1 C/40368/2021 SEAPORT C.Cus II No 90-92/2021 dated 26.02.2021 5778283 dated 29.03.2018 Rs.9,2....
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....02.2021 has held that: - "5. I have gone through the facts of the case, grounds of appeals, case laws and points put forth by the appellant during the personal hearing. I find that the bills of entry in all the three cases were filed on 07.03.2018, 29.03.2018 and 04.03.2018 respectively whereas the appeals were filed on 13.03.2020 i.e. around two years later. Section 17(5) of the Customs Act, 1962 reads as follows: - (5) Where any re-assessment done under sub- section (4) is contrary to self-assessment done by the importer or exporter regarding valuation of goods, classification, exemption or concessions of duty availed consequent to any notification issued thereof under this Act and in cases other than those where the importer or exporter, as the case may be, confirmed his acceptance of the said re-assessment in writing, the proper officer shall pass a speaking order on the re assessment, within fifteen days from the date of re-assessment of the bill of entry or the shipping bill, as the case may be. In the instant cases, I find that the duty was not paid under protest and the goods were cleared on merit rate of duty, thus accepting the assessme....
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....inciple that the time spent before the wrong forum should not be taken into consideration while calculating the limitation placing reliance on the following cases: - i. K. Natarajan v. Commissioner of Customs, Chennai 2006 (201) E.LT 107 (Tri-Chennai) ii. Otis Elevator Co. (1) Ltd. v. Commissioner of C. Ex., Mumbai 2007 (220) E.L.T 304 (Tri-Mumbai) iii. Maruti Udyog Ltd. v. Commissioner of Customs, Kandla 2009 (244) E.L.T 66 (Tri-Ahmed) 8.7 Finally, the Ld. Counsel averred that this appeal is not barred by limitation of time and the appeal ought to have been disposed by the Commissioner of Customs (Appeals) on merits and the impugned order deserves to be set aside. 8.8 I find that the Bills of Entry covered in the Impugned order are dated 07.03.2018, 29.03.2018 and 03.03.2018. The goods imported from Malaysia are exempted from payment of basic customs duty under Sl. No. 696 of Notification No. 53/2011-Customs dated 01.07.2011 if accompanied by relevant COO Certificates. As the appellants were not in possession of Certificates of Origin (COO) at the time of filing the Bills of Entry supra, they cleared the goods by paying merit rate of duty. Subseque....
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.... on the part of the Department constitutes a "sufficient cause" for excluding the period under Section 14 of the Limitation Act, 1963 as pleaded by the Appellant. 8.12 The Appellant had relied upon the decision of the Hon'ble Madras High Court, in an identical set of facts, in the case of Nipman Fastener Industries Pvt. Ltd. Vs Dy.CC, 2019 TIOL-2507-HC-MAD-CUS, which granted liberty to the petitioner therein to challenge the assessment made in the Bill of Entry before the concerned Appellate Authority. without any reference to the period of limitation. 8.13 I also find that it is a settled principle under Section 14(1) of the Limitation Act 1963 that the period spent honestly and diligently by a litigant prosecuting a proceeding before a wrong forum is to be excluded while computing limitation, provided the prior proceeding was bona fide and prosecuted with due diligence and the prior forum was unable to entertain the matter. In this regard I refer to the decision of this Tribunal on a similar issue though delivered in the context of Service Tax, the principles are the same here as it discusses the exclusion of the time spent in prosecuting before the wrong forum out of i....
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.... within a period of three (3) months from date of receipt of this order after affording an opportunity of being heard to the Appellant by strictly observing the principles of natural justice." 8.15 In pursuance to the ratio of the aforesaid decisions, I have to follow the same, in keeping with the principle of judicial discipline, as the facts of the present matter are materially identical. 8.16 Consequent upon the exclusion of the said twoyear period, the appeal filed by the appellant before the Commissioner (Appeals) is to be treated as within time and the impugned order holding the appeals to be time-barred is hereby set aside to the extent it relates to delayed/time barred Appeals. 8.17 Next, I observe that the Appellate Authority in Para 5 of the Impugned Order has held that: - "5. ........................................ I find that the duty was not paid under protest and the goods were cleared on merit rate of duty, thus accepting the assessment before clearance of goods. Therefore, their subsequent claim for reassessment by granting them notification benefit lacks merits" 8.18 On this aspect, I note that no specific submission or rebuttal has been made ....
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....e is not sustainable. The LAA has clearly ignored the submissions made by the Appellant and has mechanically rejected the appeal filed by the Appellant. The impugned order does not deal with crucial submissions made by the Appellant. 9.5 The appellant has argued that the order has been passed in gross violation of principles of equity, fair play and natural justice and so, liable to be set aside on this ground alone. 9.6 I have carefully considered the submissions of the Appellant and examined the impugned order in light of the jurisprudence governing reasoned Appeal (case Laws cited by the Appellant). On a plain reading of the impugned order, I find that the LAA has not dealt with, discussed, or even adverted to the core submissions and legal pleas raised by the Appellant. It thus squarely falls within the category of a nonspeaking and cryptic order, which has consistently been held to be legally unsustainable. 9.7 The case law relied upon is applicable to these appeals. Applying these binding principles of the case Laws relied upon, I have no hesitation in holding that the impugned order suffers from serious legal infirmity and renders the entire order invalid for violat....