TaxTMI 
TaxTMI 
2026 (8) TMI 868
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..../2026 and CM APPL. 16535/2026, CUSAA 23/2026, CM APPL. 16536/2026 and CM APPL. 16537/2026, CUSAA 24/2026, CM APPL. 16538/2026 and CM APPL. 16539/2026, CUSAA 25/2026, CM APPL. 16540/2026 and CM APPL. 16541/2026, CUSAA 26/2026, CM APPL. 16542/2026 and CM APPL. 16543/2026, CUSAA 27/2026, CM APPL. 16874/2026 and CM APPL. 16875/2026, CUSAA 28/2026, CM APPL. 16877/2026 and CM APPL. 16878/2026, CUSAA 29/2026, CM APPL. 17051/2026 and CM APPL. 17052/2026, CUSAA 30/2026, CM APPL. 17056/2026 and CM APPL. 17057/2026, CUSAA 31/2026, CM APPL. 17179/2026 and CM APPL. 17180/2026, CUSAA 75/2026, CM APPL. 49042/2026 and CM APPL. 49043/2026. For the Appellant Through: Mr. Yogendra Aldak, Mr. Agrim Arora, Ms. Sonakshi Pandey, Advs. For the Respondent Through: Mr. Gibran Naushad, SSC with Mr. Suraj Shekhar Singh, Mr. Hasan Haider, Mr. Anish Mishra, Advs. ORDER PER ANIL KSHETARPAL, J.: 1. The present batch of fifteen Appeals has been preferred by the Appellant under Section 130 of the Customs Act, 1962 [hereinafter referred to as 'Customs Act'], assailing orders passed by the Customs, Excise and Service Tax Appellate Tribunal [hereinafter referred to as 'CESTAT']. Fourteen Appeals arise f....
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....ction 27 of the Customs Act as amended with effect from 08.04.2011, that a refund claim was required to be entertained even if the assessment had not previously been reviewed or modified in appeal. These decisions constituted the binding jurisdictional position at the relevant time. 7. Relying upon the aforesaid position, the Appellant filed two refund applications on 26.08.2019, within the period of one year prescribed under Section 27. Refund File No. 285 pertained to the two later Bills of Entry, whereas Refund File No. 286 pertained to the remaining fourteen Bills of Entry. Deficiency memoranda dated 05.09.2019 and 12.09.2019 were thereafter issued in the respective files pointing out certain documentary and computational deficiencies. 8. While the refund proceedings were pending, the Supreme Court rendered its decision in ITC Limited (supra) on 18.09.2019. It held that a refund claim could not be entertained unless the assessment or self-assessment was first modified in an Appeal under Section 128 or under any other provision of the Customs Act. The procedural premise upon which the Appellant had invoked Section 27 thus ceased to be sufficient. 9. Within six days of t....
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.... with due diligence in pursuing a proceeding which proves abortive, on account of a defect of jurisdiction or other cause of a like nature and without an adjudication on merits, may be excluded. Since exclusion removes a qualifying period from the computation of limitation, as distinct from extending or condoning delay, the statutory ceiling upon the power of condonation does not preclude such exclusion. After the qualifying period is excluded, however, the Appeal must still fall within the period of limitation otherwise applicable. 14. The Supreme Court further held that, where the abortive proceeding is appellate or revisional, the period between the accrual of the cause of action for that proceeding and its institution may also be excluded. Where the abortive proceeding is itself an original proceeding, however, the period preceding its institution cannot be excluded. Section 14 only places the litigant in the same position as if the abortive proceeding had never taken place, it does not confer a fresh period of limitation. 15. In the present cases, Refund File No. 286 was in the nature of an original proceeding instituted on 26.08.2019. Consequently, M.P. Steel Corporatio....
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.... the identical legal impediment. Insistence upon another order reiterating that position would elevate form over substance. 20. On a cumulative consideration of these circumstances, the period preceding 26.08.2019 is not being excluded merely as time spent in prosecuting an original refund proceeding. Rather, in terms of the reasoning in Vishal Video (supra), that period cannot be treated as ordinary inaction because the Appellant was then entitled, under the binding jurisdictional law, to invoke Section 27 as an independent remedy. The period thereafter, during which the Appellant pursued the refund remedy and invoked Section 149, is liable to be excluded, on the principles underlying Section 14, up to 02.06.2020. For the limited purpose of the peculiar facts of these cases, limitation is consequently required to be computed from 02.06.2020. 21. There is an additional statutory consideration. Upon exclusion of the period up to 02.06.2020, the initial period of sixty days under Section 128 would have expired on 01.08.2020. That date fell within the period covered by Section 6 of the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020, read with ....