TMI Blog2012 (11) TMI 1069X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication has been filed by M/s. National Aviation Company of India Ltd., Mumbai (in which former Air India Ltd. was merged) against the order-in-appeal No. S/49/72/2011/AP-FTT/41/Mumbai-III/2012 dated 30-4-2012 passed by Commissioner of Central Excise (Appeals) Mumbai-Zone-III with respect to order-in-original No. Air Cus./FTT/Adjn-01/2008, dated 12-3-2008 passed by Assistant Commissioner of Customs, C.S.I. Airport, Mumbai. 2. Brief facts of the case are that M/s. National Aviation Company of India Ltd., erstwhile Air India Mumbai are required to pay into the Government treasury within specified period, the amount of Foreign Travel Tax collected by them at Chhatrapati Shivaji International Airport, Mumbai from the passengers embarking on international journey outside India on board their flights. On scrutiny of the office records and monthly returns submitted for the relevant period by the said applicant, it was observed that for the months of August, 98, September, 98 and October, 98, the payment of Foreign Travel Tax made to the Government by the applicant was short by ₹ 81,58,500/-, ₹ 68,09,009/- 53,95,000/- and thus the applicant had contravened Rule 4 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mes within the ambit of Section 29(2) of the Act, 1963 so as to include the application of Sections 4 to 24 of the Act, 1963 (as not expressly excluded). To come within the ambit of Section 29(2) of the Act, 1963, three main ingredients are required to be satisfied, namely :- (1) The special or local law must provide for a period of limitation for any suit or appeal. (2) The said period of limitation must be different from the period prescribed by the Schedule to the Limitation Act. (3) It is common ground that the FTT Rules provided for a period of limitation for filing an appeal and the said period of limitation is different from the period prescribed by the Schedule to the Limitation Act. It is relevant here to state that Rule 13 of the FTT Rules, 1979 prescribes limitation of three months whereas Article 116 of the Schedule appended to the Limitation Act provides limitation of 90 days for filing appeal to the High Court. The relied upon case laws are:- (i) Supreme Court in the case of Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, AIR 1995 SC 2272. (ii) Harbir Singh v. Ali Hasan Ors., AIR 1966 All. 161. (iii) Vidyacharan s case; A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scarriage of justice. Reliance is placed on Mark Auto Industries v. CCE, New Delhi - 2001 (138) E.L.T. 399 (Tri.). 4.5 It is respectfully submitted that appellate authority failed to appreciate the fact that the Show Cause Notices were issued in the year 1998 and same were replied by the applicant vide letter dated 3-12-1998. He further failed to take on record the delay on part of the respondent in fixing a date for personal hearing pursuant to the Show Cause Notices after a lapse of over six years and failed to appreciate the full importance of Rule 10 of the Foreign Travel Tax Rules, 1979. The appellate authority ought to have considered the replies filed by the applicant from time to time. He has also failed to appreciate that the applicant in good faith sought time to enable the applicant to collect the data from the other officers, though it was not obligatory on the part of the applicant since the obligation to collect and deposit FTT was only for Mumbai Airport. 4.6 It is respectfully submitted that all the impugned Show Cause Notices were issued in a haste without offering any opportunity to the applicant, in the normal course to reconcile the FTT paid at Mumbai for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th oral and written submissions of the respondent and also perused the orders passed by the lower authorities. 7. From perusal of records Government observes that Commissioner (Appeals) has rejected the appeal of applicant as time-barred since it was filed after a delay of 1008 days. So before taking up the issue for decision on merit, it has to be decided whether revision application can be considered under Rule 15 of FTT Rules, 1979 when appeal filed under Rule 13 of FTT Rules, 1979 was rejected as time-barred. The applicant herein is pleading that for filing an appeal under Rule 13 of the FTT Rules, 1979, the provisions of Limitation Act, 1963 should be considered and not the prescribed Act/Rules. Government notes that in this case matter the undisputed delay is of 1008 days in filing appeal before Commissioner (Appeals) has been sought to be condoned. Commissioner of Customs (Appeals), has held that as per the applicable provisions, i.e. Section 128 of the Customs Act, 1962 he has powers to condone delay up to 30 days only and therefore he rejected the appeal on time-barred without going into the merits of the case. 7.1 Government notes that applicant has filed appeal bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xing the statutory time-limit of filing appeal before Commissioner of Customs (Appeals) under Section 128 of Customs Act, 1962. The observations of High Court contained in certain paras of judgment as under :- 5. Learned Counsel appearing before us submitted that in view of the provisions contained in Section 5 of the Limitation Act, 1963 the application for condonation of delay ought to have been considered by the appellate authority and the delay ought to have been condoned. It was further submitted that the Tribunal ought to have entertained the appeal on merits. According to the learned Counsel for the petitioner, considering the provisions contained in Section 29(2) of the Indian Limitation Act, 1963 read with Section 5 thereof, irrespective of the fact that the matter was under the Customs Act, the appellate authority ought to have condoned the delay, examined the matter on merits, it could not have dismissed the appeal on the ground that the Commissioner (Appeals) can only condone the delay, if an appeal is presented within a period of 30 days after the statutory period of 60 days in view of Section 128 of the Act. The said Section reads as under :- 128. Appeals to C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner submitted that the decision is sub salentio and therefore is of no assistance to the Court. 8. The right to prefer an appeal is a statutory right, however, it does not mean that there cannot be any restriction on that right to be exercised within a particular period. Parliament has the power to put restrictions on exercise of such power unless exercised within a stipulated period by making a legislation that the right shall be exercised within that stipulated period. After the delay period is over right of appeal cannot be exercised and for that proviso cannot be considered to be bad or unreasonable. Under different statutes, restrictions have been placed on the exercise of the right to prefer appeals. The right of appeal is given to the party aggrieved, but that right is required to be exercised by preferring an appeal within a period of sixty days from the date of communication in view of Section 128 of the Act. At the same time, if the party aggrieved is unable to prefer an appeal within a period of 60 days, but if he prefers an appeal thereafter, within a period of 30 days, then, the appellate authority on being satisfied that he was prevented by a sufficient cause f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of Section 5 of the Limitation Act, is excluded. This, in the opinion of the Court, is the only possible interpretation as the legislative intent is clear. The period of 60 days is prescribed as limitation for preferring an appeal, secondly the appellate authority has no discretion to extend this period beyond the further period of 30 days, even if sufficient cause is shown. Reading the Section, it is very clear that the Act gives no jurisdiction to the appellate authority to extend the limitation, even in a suitable case for a further period of more than thirty days. It is also required to be noted that delay in disposal of revenue matters adversely effects the steady inflow of revenue and financial stability of the State. The scheme of Section 128 of the Act is, therefore, designed to ensure speedy and final determination of fiscal matters within a certain time schedule. It may apparently seem that the provision is harsh but merely because the provision is harsh it cannot be said to be bad. Be that as it may, from the scheme of the Act and the language used in Section 128, the intention of the Legislature to exclude the unrestricted application of principles of Section 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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