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M/s. ICMC Corporation Ltd., Versus The Commissioner of Appeals II, Department of Customs,

2015 (3) TMI 1180 - MADRAS HIGH COURT

Seeking direction for condonation of delay of 18 days - beyond statutory period conferred power under him - Section 128 of the Customs Act, 1962 - petitioner was under a dilemma as to whether an appeal is to be filed against the Bill of Entry or a refund application is enough for the differential amount and that they were under the bona fide impression.

Held that:- it is not in dispute that the bill of entry is dated 1.5.2014 and the application to file an appeal before the Commission .....

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of other four items, wherein, the appeals were filed though after expiry of 60 days, however, since they were within the condonable period of 90 days. The present appeal was beyond the statutory period of 90 days and the authority has rightly rejected the same, since he cannot be expected to exercise his discretionary power beyond the permissible period that was prescribed by the statute.

The Customs Act, 1962 itself is a complete Code. Reading various chapters and various sections .....

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Limitation Act were to apply only to the extent and during the extended period of 30 days and not beyond. Delay could be condoned by the Commissioner (Appeals) within the extended period of 30 days and thereafter he had no power left in him to entertain any application for condensation of delay or to entertain the appeal itself.

Therefore, having regard to the categoric pronouncement of Hon’ble Supreme Court in various cases, holding that when the scheme of the special law which here .....

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oned. the order passed by the commissioner (Appeals) are unassailable in law. - Decided against the petitioner - Writ Petition No. 32610 of 2014 - Dated:- 4-3-2015 - Mr. S.VAIDYANATHAN J. For the Petitioner: Mr.J.James For the Respondents: Mr. Rajnish Pathiyil, SCGSC ORDER This Writ Petition has been filed, praying for the issuance of a writ of Mandamus, to direct the respondent to condone the delay of 18 days beyond the statutory period conferred powe .....

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assessed at 10% CVD charged on RSP basis, by classifying the said goods under CTH/CETH84713010. 3. By order, dated 20.11.2014, the Commissioner of Appeals II, while allowing the rest of the appeal, rejected the appeal in respect of the Bill of entry No.5363496, dated 1.5.2014, on the ground that it has been filed beyond the time limit prescribed under Section 128 of the Customs Act, 1962 and it is time barred. 4. The petitioner has filed an application for condoning the de .....

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ould be re-assessed at the time of final assessment of the earlier Bill of entries and that they consulted outside legal experts which took considerable time. 5. The learned counsel appearing for the petitioner would submit that the petitioner has a good case on merits and the authority, without considering the sufficient satisfactory grounds for condoning the delay made out by the petitioner, has rejected the appeal on the technical ground of limitation, which would deprive of its s .....

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of the High Court of Gujarat reported in Amitara Industries Ltd., versus Union of India reported in 2014 (205) ELT 322 (Guj.), wherein, while dealing with similar circumstances, it was held that the authority of Commissioner of Appeals, has power to condone the delay of 3 months maximum, however, the writ Court has jurisdiction to entertain the appeal even beyond the period of limitation to obviate extraordinary hardship and injustice. It was also held therein, that the total length of delay bei .....

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made in W.P.Nos.4770, 2496 and 2497 of 2013, wherein, this Court while dismissing the writ petition, liberty was granted to the petitioner therein, to file an appeal to the Commissioner of Customs (Appeal), who shall entertain the same, without rejecting on the ground of limitation, but to consider on merits and in accordance with law. He pointed out that when admittedly, the authority, on merits, have allowed four appeals, ought not to have rejected the appeal which was on same merits, on the .....

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ng this Court to exercise its power to condone the delay, it has no power to condone the delay. In support of his contentions, he relied upon the decisions of the Hon ble Supreme Court, reported in Chahatisgarh State Electricity Board versus Central Electricity Regulatory Commission and others (2010) 5 SCC 23 and Commissioner of Customs and Central Excise versus Hongo India Private Limited and another (2009) 5 SCC 791. Therefore, he prayed for dismissal of the writ petition.

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Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days. (1-A) The Commissioner (Appeals) may, if sufficient cause is shown at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be re .....

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communication of the decision or order which is the subject matter of the appeal. The proviso to Section 128 (1) enables the Commissioner (Appeals) to permit the filing of the appeal beyond the sixty days referred to above provided that he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the sixty days prescribed. However, on a plain reading of the proviso, it does appear that the Commissioner (Appeals) can exercise such power only wi .....

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days, i.e. on or before 2.7.2014. However, it has been filed on 13.8.2014. It is to be noted that the proviso to Section 128 (1) enables the Commissioner (Appeals) to permit the filing of the appeal beyond the sixty days provided that he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the sixty days prescribed. In fact, while exercising such discretionary power, the authority has condoned the delay in respect of other four items, wherein, the .....

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ence can be made to a decision reported in Singh Enterprises versus CCE (2008) 3 SCC 70, wherein, the Hon ble Supreme Court, interpreted Section 35 of the Central Excise Act, 1944 which is pari material to Section 128(1) of the Customs Act and observed as under in para 8: 8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of statute are not vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. The peri .....

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ient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to subsection (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented b .....

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sis added) 11. The above said decision was followed by the Hon ble Supreme Court in its subsequent decision reported in Commissioner of Customs and Central Excise versus Hongo India Private Limited and another (2009) 5 SCC 791, wherein, the question for determination came up before it, was whether the High Court has power to condone the delay in presentation of the reference application under unamended Section 35-H(1) of the Central Excise Act, 1944 beyond the period prescribed, by ap .....

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e nature of the remedy provided therein is such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude .....

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ference application to the High Court. 36. The scheme of the Central Excise Act, 1944 supports the conclusion that the time-limit prescribed under Section 35-H(1) to make a reference to the High Court is absolute and unextendable by a court under Section 5 of the Limitation Act. It is well-settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Limi .....

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it is an Act independent of other provisions. It provides for search, seizure, arrest, confiscation of goods, conveyance, imposition of penalties, settlement of cases, appeals including the appeal to the Supreme Court and hearing before the Supreme Court, period of limitation, offences and prosecution. Thus, it is an independent Act. Therefore, the Customs Act, 1962 is a complete code and the provisions of Section 128 (1) clearly indicate that the provisions of the Limitation Act were to apply o .....

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ial law which herein in this case is the Customs Act and the nature of the remedy provided therein is such that the legislature intended it to be a complete code by itself, which alone should govern the several matters provided by it, it is clear that the provisions of the Limitation Act are necessarily excluded, the benefits conferred therein cannot be called in aid to supplement the provisions of the Act, this Court is of the view that the delay which is beyond the statutory period of limitati .....

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