TMI Blog2022 (2) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the decision or order passed under the Act by an officer of the Customs lower in rank than the Principal Commissioner or Commissioner of Customs and such appeal can be filed within a period of 60 days from the date of communication of the order. The proviso further grants 30 days time period subject to appeal giving substantial reasons for not filing an appeal within 60 days. Therefore, the dismissal of the appeal filed by the petitioner against the communication dated 21.07.2020/24.09.2020 by the second respondent vide impugned cannot be sustained. There is a violation of the principles of natural justice, the impugned order passed by the second respondent is quashed and the case remitted back to pass orders on merits by deciding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Infocom Ltd came to be decided by the Tribunal by its final order No.85882 of 2018 dated 06.11.2019, pursuant to which, for the earlier imports, the petitioner filed refund of the customs duty paid under protest. For the 15 Bill of Entries filed between 2018-2019, the petitioner filed application under Section 149 of the Customs Act, 1962 on 12.04.2020 for amending the Bill of Entries in terms of the above decision of the Tribunal. 4.The petition filed under Section 149 of the Customs Act, 1962 on 12.04.2020 has culminated in a communication dated 21.07.2020 bearing reference No.F.No./smisc/46/2020/Gr.5A DIN:20200773MX0000IL4026. 5.Aggrieved by the same, the petitioner had filed appeal before the Commissioner of Customs (Appeals), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s prevented by sufficient cause from presenting the appeal within] 7.It is observed that the appeal request for change of classification should have been filed within three months from the date of assessment which is not so in the instant case. The appeals are filed beyond the permissible period prescribed under Section 128 of the Customs Act, 1962. Hence, the appeals are rejected as time barred.'' 6.The learned counsel for the petitioner has drawn attention to the acknowledgement received by the petitioner from the office of the second respondent on 22.09.2020. He submits that the second respondent has passed the impugned order dated 19.04.2021 Order-in-Appeal SEAPORT C.Cus.II.No.347-361/2021 by simply referring to lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e an empty formality to remit the case back to the second respondent to pass fresh order for de novo consideration. 10.The respondent further submits that petitioner has an alternative remedy before the Tribunal under Section 129A of the aforesaid Customs Act, 1962. 11.He further submits that since the customs duty was not paid ''under protest'' by the petitioner the refund will be in any event time barred. 12.By way of rejoinder, the learned counsel for the petitioner has specifically drawn the attention to para 47 from the decision of the Hon'ble Supreme Court in ITC Limited Vs. CCE referred to supra which reads as under:- 47.When we consider the overall effect of the provisions prior to amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Vs. CC , 2008(230) ELT 425 (Tri-Mumbai). 14.I have considered the arguments advanced by the learned counsel for the petitioner and the learned Senior Standing Counsel for the respondents. 15.As mentioned at the beginning of this order, this Court has not expressing any opinion on the merits of the case as to whether the petitioner was indeed entitled to file the application under Section 149 of the Customs Act, 1962. 16.The fact of the matter is that after the petitioner filed application under Section 149 of the Customs Act, 1962 on 22.04.2020 and 05.05.2020. The 3rd respondent disposed the same in a peremptory manner vide communication dated 21.07.2020 bearing reference in F.No.Smisc/46/2020/Gr.5A DIN:20200773 MX0000IL4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by deciding the issue as to whether the petitioners was indeed entitled to file an appeal against the impugned communication dated 21.07.2020 and whether any consequential relief could be granted to the petitioner in the light of the order of the Tribunal in Reliance Jio Infocom Ltd accepting the stand of the petitioner regarding a classification of Antennas for Base Transmission Station imported by the petitioner. 19. In the result, the impugned order stands quashed and the case is remitted back to the 2nd respondent to pass appropriate orders on merits and in accordance with law. Needless to state, the petitioner shall also to be heard. 20.Accordingly, this writ petition stands disposed of with the above observations. No costs. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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