TMI Blog2014 (6) TMI 336X X X X Extracts X X X X X X X X Extracts X X X X ..... terprises vs. Commissioner of Central Excise, Jamshedpur cited [2007 (12) TMI 11 - SUPREME COURT OF INDIA] - Decided against assessee. - C/151/2011 - A/261/13/CSTB/C - I - Dated:- 8-2-2013 - P.R. Chandrasekharan And Anil Choudhary, JJ. For the Appellant : Shr C.M. Sharma, Consultant For the Respondent : Shr Navneet, Addl. Commissioner (AR) ORDER:- PER : P.R. Chandrasekharan In the case of refund, the application his to be filed within six months from the date of payment of duty and not with respect to date of assessment. [Para 10] 1. The appeal is directed against the Order-in-Appeal No:442 (Gr.VA) / 2010(JNCH) / Imp-402 dated 31/12/2010 passed by the Commissioner of Customs (Appeals), Nhava Sheva, Mumbai-11. 2. The appellant MIs. Jindal Drilling Industries Ltd. filed a Bill of Entry No. 931186 dated 06/06/200 for import of Oil Well Supplies' falling under Chapter 84 of the Customs Tariff Act. The Bill of Entry was assessed to duty on second check basis on 09/06/2009 pending payment of duty and examination of goods and out of charge order. The appellant paid Customs duty assesses on 16/06/2009, the goods were examined by the Customs on 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise 2012 (278) ELT 289 (Kar.) and Bansal Alloys Metals Pvt. vs. Commissioner of Customs 2009 (24Q) ELT 483 (P H) in support of the above contention. The learned consultant submits that as per Public Notice No. 85/99 dated 29/07/1999, in respect of bill of Entry file through EDI system, the importer's copy and Exchange Control copy of the Bill of Entry is' generated only after grant of out-of-charge and; the date of out of charge is the date of assessment. 4. The learned Additional Commissioner appearing for the Revenue submits that what is challenged is the assessment order passed by the Asstt./ Dy. Commissioner of Customs. It is the date of passing of the said order which is relevant for considering the time limit for filing 'the appeal. The learned addl. Commissioner (AR) submits that as per the Public Notice, after assessment is over by the AO/AC, the system generates one (customs) copy of Bill of Entry and 3 copies of the TR6 challans for payment of duty and the documents are handed over to the importer at the service centre. Thus, in the present case since the assessment was completed on 09.06.2009 communication of the same along with copies of TR6 challans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atementsmade in the Bill of Entry relating thereto, and the documents produced and the information furnished under sub-section (3). But if it is found subsequently on examination or testing of the goods or otherwise that any statement in such entry or document or any information so furnished is not true in respect of any matter relevant to the assessment, the goods may, without prejudice to any other , action, which may be taken under this, Act, be re-assessed to duty. 5.2. In the present case; it is seen that there Was no re-assessment done after examination. From the provisions of law cited above, it is clear that the assessment was complete on 09/06/2009 though payment of duty, examination of the goods and out-of-chargewas done later. 5.3. An identical issue came up before this Tribunal for consideration in Payal Petropack Pvt. Ltd. (cited supra) and this Tribunal held as follows: 3.1 From the records of the case, it is seen that while the assessment have been completed on 5-12-08, the out of charge order was given on 19-12-08 and this is clear from the letters dated 8-12-08 and 12-12-08 of the appellant addressed to the Assistant Commissioner. he appellant's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal. Section 35 of the Central Excise Act is pari materia to Section 28 of the Customs Act and, therefore, the ratio of the decision cited supra will squarely apply to the facts of the present case. 5.6. The Supreme Court further considered the matter and heId that even a higher authority than the Commissioner (Appeals) such as Tribunal, High Court or the Supreme Court has no power to condone the delay in excess of 90 days. The hon'ble apex Court observed that there was no law declared by this Court that even though the Statute prescribed a particular, period of limitation, this Court can direct condonation. That would render a specific provision providing for limitation rather otiose. 5.7 The reliance placed by the appellant in the case of Sterlite Optical Technologies Ltd. (cited supra) does not help their case. In that case the hon'ble HighCourt held as follows: 22. The word assessment is used as meaning sometimes the computation of rate of duty, sometimes the assessable value of goods and sometimes the whole procedure laid down under the Act for imposing duty liability upon the manufacturer or importer. The word assessment is, thus, capable of bea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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