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TMI Blog2022 (2) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act, 1962 for amending the Bill of Entry which were filed between December 2018 to March 2019 and another three set of Bill of Entries during December 2018. 2.The case of the petitioner is that the petitioner is importing Antennas for Base Transmission Station and had classified them originally under Customs Tariff Sub-Heading 85.17.62.90 which is exempted the petitioner for payment of duty on the imported Antennas for Base Transmission Station. Since the department insisted that the Base Transmission imported by the petitioner was classifiable under the Customs Sub-Heading 85.17.62.90, the petitioner opted the classification imposed by the department and thus ended up paying higher custom duty. 3.Meanwhile, the identical issue in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal under the provisions of Section 128 of the Customs Act, 1962 against the aforesaid communication of the lower authority seeking amendment/modification of the bills of entry filed during the period December 2018 to March 2019 (13.12.2018 to 01.03.2019). Section 128 of the Customs Act, 1962 reads as below: Section 128.Appeals to Commissioner (Appeals)- (1)Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a Principal Commissioner of Customs or Commissioner of Customs may appeal to the Commissioner (Appeals) [within sixty days] from the date of the communication to him of such decision or order: [Provided that the Commissioner (Appeals) may, if he is satisfied that the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t petition is devoid of merits inasmuch as the petitioner has not filed an appeal against the respective Bill of Entries in time as is contemplated as has been settled by the Hon'ble Supreme Court in ITC Limited Vs. CCE, (2019) 17 SCC 46. In this connection, the learned Senior Standing Counsel for the respondents has referred to few passages from the decisions of the Hon'ble Supreme Court. 9.The learned Senior Standing Counsel for the respondents further submits that no useful purpose would be served by setting aside the impugned order inasmuch as no appeal has been filed against the respective Bill of Entries by the petitioner in time. It is further submitted that if duty was not paid under protest and it would be an empty formali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of this Court, High Courts and the Tribunal have passed and attention was drawn to para 15 from the said order which reads as under: 15.Without prejudice, it is also pertinent to note that the Courts and Tribunals have held time and again that mistakes relating to classification or incorrect rate can always be corrected under Section 149 and/or 154 of the Customs Act and for the same, the Appellant places reliance on the following judgments: (a)CC Vs.Thiru Arooran sugars Ltd., 2010(254)E.L.T 45(Mad) (b)UOL Vs.Aluminium Industries Ltd, 1996(83) ELT 41 (Ker) (c)Bennet Coleman and Co.Ltd Vs.CC, 2008(232) ELT 367(Tri-Bang). (d)Mahindra & Mahindra Ltd Vs.CC, 2008(230) ELT 425 (Tri-Mumbai). 14.I have considered the arguments advance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rincipal 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, I am inclined to quash the impugned order passed by the second respondent and remit the case back to pass orders on merits by deciding the issue as to whether the petitioners was indeed entitled to file an appeal against the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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