TMI Blog2023 (11) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... ice of the Chief Commissioner (Authorised Representative) on 28.01.2020. Section 153(1) of the Customs Act provides that a notice may be served by giving or tendering it directly or on the authorised representative of the addressee, or by sending it by registered post with acknowledgment due to the person to whom it is issued. When such a notice is tendered, it shall be deemed to have been served on the date on which it is tendered and when such a notice is sent by registered post with acknowledgement due, it shall be deemed to have been received by the addressee at the expiry of the period normally taken by such post in transit unless the contrary is proved - In the present case, the copy of the appeal was tendered in the office of the Chief Commissioner (Authorised Representatives) on 28.01.2020 and the letter addressed to the respondent sent by the Registry of the Tribunal by Registered Post with acknowledgement due was despatched on 30.01.2020. All that has been stated in the application filed to condone the delay is that the copy of the appeal was not available in the file of the department and the appeal was received only on receipt of the letter dated 21.07.2022 sent by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Additional Duty of Customs would be leviable only at 1 percent under entry at serial 263A on import of mobile phones provided condition no. 16 was satisfied. Condition no. 16 provides that for an assessee to claim the lesser 1 percent of Additional Duty of Customs, it should not have taken credit under rule 3 or rule 13 of the CENVAT Credit Rules 2004 the CENVAT Rules in respect of the inputs or capital goods used in the manufacturer of these goods. 7. The Supreme Court, in the context of the import of Nylon Filament Yarn of 210 deniers, examined a similar condition no. 20 in SRF Ltd. vs. Commissioner of Customs, Chennai 2015 (318) E.L.T. 607 (S.C.) . The appellant therein had claimed nil rate of additional duty by relying upon a notification dated 01.03.2002. The Deputy Commissioner of Customs held that SRF would not be entitled to exemption from payment of additional duty since it did not fulfil condition no. 20 of the said notification, which is to the effect that the importer should not have availed credit under rule 3 or rule 11 of the CENVAT Rules in respect of the capital goods used in the manufacture of these goods. The admitted position was that such CENVAT c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngly, held that there was no necessity of seeking modification in the Bills of Entry. The relevant portion of the order passed by the Deputy Commissioner is reproduced below: In any event, after 8th April, 2011, as noticed hereinbefore, as long as customs duty or interest has been paid or borne by a person, a claim for refund made by such person under section 27(1) of the Act as it now stands, will have to be entertained and an order passed thereon by the authority concerned even where an order of assessment may not have reviewed or modified in appeal. Hence, again, following judicial discipline, the refund claim of the claimants, needs to been entertained on the basis of their self-assessed Bills of Entry, though there is no modifying order for those Bills of Entry (emphasis supplied) 10. After having held so, the Deputy Commissioner framed two issues to be decided, namely whether the said refund claim was hit by limitation and whether the appellant had proved that the incidence of Additional Duty of Customs had not been passed on to the buyers. As regards limitation, the Deputy Commissioner held that the claim was not barred by time, but as regards the issue as to wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel appearing for the appellant to remove the deficiencies in the appeal, with a copy of the said letter to the department. 14. Subsequently, after the defects were removed by the appellant, a communication dated 24.01.2020 was sent by the Registry of the Tribunal to the Commissioner, Customs- New Delhi (ACC Export) by Registered Post with acknowledgment due forwarding the Memorandum of Appeal and the Commissioner was also informed that the letter should be treated as a notice under section 129-A(4) of the Customs Act for filing Cross Objections. Copies of the said letter were also sent to the office of the Chief Commissioner (Authorised Representative) with a copy of appeal, and to the appellant and the learned counsel for the appellant. This letter was tendered by the Registry of the Tribunal in the office of the Chief Commissioner (Authorised Representative), situated in the same premises as the Tribunal, on 28.01.2020. 15. The said section 129-A(4) of the Customs Act is reproduced below: 129A(4) On receipt of notice that an appeal has been preferred under this section, the party against whom the appeal has been preferred may, notwithstanding that he may n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Cross Objections refer to the decision of the Supreme Court in Priya Blue Industries Ltd. vs. Commissioner of Customs (Preventive) 2004 (172) E.L.T. 145(S.C.) = (2005) 10 SCC 433 wherein the Supreme Court held that so long as the order of assessment stands and has not been reviewed under section 28 of the Customs Act, duty would be payable as per the order of assessment. The grounds contained in the Cross Objections also place reliance upon the decision of the Supreme Court in ITC Ltd. vs. Commissioner of Central Excise, Kolkata-IV 2019 (368) E.L.T. 216 (S.C.) , wherein the Supreme Court held that the claim for refund cannot not be entertained unless the order of assessment or self-assessment is modified in accordance with law. It is for this reason that it has been alleged in the Cross Objections that the refund granted to the appellant is improper and the order passed by the Assistant Commissioner should be set aside. 21. The Cross Objections filed by department are accompanied by a Delay Condonation Application and the averments made in the said application are reproduced below: Prayer for Condonation of Delay Most respectfully, it is stated that there ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the order passed by the Supreme Court in suo moto proceedings; and (iv) The time limit would, therefore, begin from 09.01.2020 upto 14.03.2020 and thereafter from 01.03.2022. The delay of the balance 260 days may, therefore, be condoned. 23. It is seen from a perusal of section 129A(4) of the Customs Act, that it is only on receipt of notice that the party against whom the appeal has been preferred, may file within 45 days of the receipt of the notice, a Memorandum of Cross Objections. 24. In the present case, the notice dated 24.01.2020 was sent to the respondent by the Registry of the Tribunal by registered post with acknowledgment due on 30.01.2020. The office has also reported that the said letter dated 24.01.2020 with copy of appeal was also served in the office of the Chief Commissioner (Authorised Representative) on 28.01.2020. 25. The relevant portion of section 153 of the Customs Act, which deals with modes for services of notice, is reproduced below: 153 Modes for services of notice, order, etc. (1) An order, decision, summons, notice or any other communication under this Act or the rules made thereunder may be served in any of the following modes, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, it shall be treated to have been served on 28.01.2020. The delay condonation application does not mention this fact. The fact that a copy of the appeal was served is also evident from the fact that the learned authorized representative of the department did subsequently send the copy of the appeal to the office of Commissioner of Customs. 29. A letter with the appeal was also despatched by the Registry of the Tribunal on 30.01.2020 by registered post with acknowledgment due. It shall be deemed to have been served upon the addressee within two weeks, which is normally the period taken by such post, since nothing to the contrary has been proved by the department. It can, therefore, safely be assumed that the letter enclosing the memorandum of appeal and also containing a clear statement that the letter should be treated as a notice under section 129A(4) of the Customs Act was served upon the department on or before 14.02.2020. 30. The time period contemplated under section 129A(4) of the Customs Act for filing Cross Objections is 45 days from the receipt of the notice. The notice was tendered in the office of the Chief Commissioner (Authorised Representative) on 28.01.2020. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Tribunal on various dates noted above. 36. In C.P. System Pvt. Ltd. vs. Commissioner of Service Tax, Audit-1 Delhi 2020 (33) G.S.T.L. 182 (Del.) the Delhi High Court observed that when the matter was listed on eight occasions before the Tribunal and was adjourned, the Cross Objections could have been filed within the stipulated time. 37. The Full Bench of the Delhi High Court in CIT-7 vs. Odeon Builders Pvt. Ltd. ITA 52/2015, CM APPL 23522/2015 decided on 24.03.2017 observed that once a representative of the department, such as the departmental representatives, are aware of the order, then from that point it is a purely an internal administrative arrangement as to how the said officer further communicates the order to the officer who has to take a decision for filing an appeal. 38. What also needs to be noticed is that the objections now sought to be raised in the Cross Objections had been raised by the department before the Deputy Commissioner, as is clear from the order passed by the Deputy Commissioner and there is no good reason as to why the department could not immediately file the Cross Objections. The judgment of the Supreme Court in Priya Blue Indu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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