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TMI Blog2023 (11) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... section 27(2) of the Customs Act 1962 the Customs Act. 2. Cross Objections in this appeal were filed by the department on 28.12.2022 in terms of section 129A(4) of the Customs Act, and with the Cross Objections an application for condoning the delay of 977 days was also filed. 3. Learned counsel for the appellant not only opposed the delay condonation application, but also submitted that the Cross Objections and the delay condonation application should be rejected as they have not been filed in the manner prescribed by the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 the 1982 Rules. 4. On these two issues, namely as to whether the delay in filing the Cross Objections should be condoned or not, and whether the Cross Objections and the delay condonation had been filed in accordance with the procedure prescribed, submissions were made by Shri Nagendra Yadav learned authorised representative for the department and Shri Kamal Sawhney learned counsel for the appellant and the order was reserved only on these two issues. 5. The appellant imported mobile phones during the period November 2014 to February 2015 and paid Additional Duty of Customs at the rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is identical to condition no. 20 of the notification dated 01.03.2002 that was examined by the Supreme Court in SRF Ltd. It had, however, paid Additional Duty of Customs at the rate of 6 percent upto February 2015. The appellant, therefore, filed an application on 29.10.2015 for refund of the excess Additional Duty of Customs that was paid by it. 9. The Deputy Commissioner, by order dated 23.01.2017, in view of the decision of the Supreme Court in SRF Ltd., held that the appellant would be required to pay Additional Duty of Customs at the reduced rate of 1 percent in terms of condition no. 16 of the notification dated 17.03.2012. The Deputy Commissioner then examined whether it was necessary for the appellant to get re-assessment of the Bills of Entry and for this purpose examined the decision of the Delhi High Court in M/s. Micromax Informatics Ltd. vs. Union of India 2016 (335) E.L.T. 446 (Del.) that had been placed by appellant to contend that it was not necessary to seek re-assessment of the Bills of Entry. The Delhi High Court in Micromax Informatics had held that an authority would not be justified in refusing to entertain an application for refund only because no app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a Chartered Accountant cannot be disbelieved and should be accepted as true and correct. Consequently, it was held that in view of the said certificate the appellants had succeeded in proving that the burden of incidence of duty has not been passed on to the buyers. However, in the present case the appellants was asked certain documents for rebuttal of any unjust enrichment by the original adjudicating authority, still the appellant's C.A. Certificate findings were not supported with the documents. In such circumstances, I find that all the above mentioned cases laws, relied upon by the claimant, are set upon a different sets of facts and hence cannot be applied to the present case. 5.4 In view of above, I find that, the impugned Order is legally correct as the applicant has failed to conclusively prove that the burden of incidence of duty has not been passed on to the buyers of the goods imported under the subject Bills of Entry. And accordingly, this refund claim is hit by the doctrine of unjust enrichment." (emphasis supplied) 12. The appellant has filed this appeal to challenge the order passed by the Commissioner (Appeals). 13. When the appeal was filed on 18.12.2019, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the appeal was directed to be listed on 24.11.2021 with Customs Appeal No. 50202 of 2020. These two appeals were thereafter listed on 24.11.2021 and 10.12.2021. On 10.12.2021 learned authorised representative appearing for the department took time and the matter was adjourned to 09.02.2020. The appeals were thereafter listed on 09.02.2022, on which date it was adjourned to 27.04.2022. On 21.07.2022, the matter was adjourned to 03.10.2022. On all the aforesaid dates on which the appeals were listed, the learned authorised representative appearing for the department had appeared. 18. On 03.10.2022, time was taken by the learned authorised representative appearing for the department to file Cross Objections. The matter was accordingly adjourned to 28.10.2022, on which date the learned authorised representative appearing for the department sought an adjournment. 19. It was on 28.10.2022 that the communication dated 27.10.2022 sent by the Deputy Commissioner of Customs (Review) ACC Import, New Customs House, New Delhi addressed to the Assistant Registrar of the Tribunal enclosing Form CA-4 for filing Cross Objections in this appeal with a delay condonation application was received b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to hold that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws (which includes the Indian Contract Act, 1872 read with the Civil Procedure Code, 1908) in respect of all judicial or quasi-judicial proceedings. Thus the limitation begins from 09.01.2020 to 14.03.2020 and thereafter from 01.03.2022. Applying the Judgment of Hon'ble Supreme Court, this Hon'ble CESTAT after considering the Judgment may be pleased to condone the delay of balance 260 days for the reasons as stated above. (Modassar Shafi) Deputy Commissioner of Customs Signature of the Applicant (emphasis supplied) 22. The aforesaid Delay of Condonation Application states the following facts: (i) Copy of the appeal filed by the appellant was not available in the department file and the same was received only when the letter dated 21.07.2022 of the Additional Commissioner (AR) posted in the Tribunal was received; (ii) Thereafter, comments were sought from the concerned section, which took some time and preparation of Cross Objection also took some time; (iii) The time period from 15.03.2020 to 28.02.2022 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. 27. 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 the Additional Commissioner (Authorised Representative). 28. As noticed above, a copy of the Appeal Memorandum was served in the office of the Chief Commissioner (Authorised Representative) on 28.01.2020. In terms of the section 153(1) of the Customs Act, it s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment took no steps whatsoever for filing the Cross-Objection. There was, therefore, no necessity for the department to have waited for the communication dated 21.07.2022 from the Additional Commissioner (Authorised Representative) since the Cross-Objections have to be filed within 45 days from the date of receipt of the Memorandum of Appeal. 34. The Delay Condonation Application specifically mentions that the copy of the appeal was not available in the department file. There is no averment that the copy of the appeal was not received by the department. Even otherwise, a copy of the appeal had been served in the office of the Chief Commissioner (Authorised Representative) by the Registry of the Tribunal on 28.01.2020. 35. The learned authorised representative appearing for the department, as noticed above, had appeared before the Tribunal on 01.11.2021, 24.11.2021, 10.12.2021, 09.02.2022, 27.04.2022, 21.07.2022 and 03.10.2022. If the copy of the appeal had not been served upon the learned authorised representative appearing for the department, the learned authorised representative of the department would have raised an objection when the appeal was listed before the Tribunal o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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