TMI Blog2023 (11) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... ffice of the Chief Commissioner (Authorised Representative) on 03.03.2020. 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 03.03.2020 and the letter addressed to the respondent sent by the Registry of the Tribunal by Registered Post with acknowledgement due was despatched on 03.03.2020. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 credit w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld 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 whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 26.02.2020 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) in the Tribunal 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, in the Tribunal on 03.03.2020. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceived by the Registry of the Tribunal. 20. The grounds contained in 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present cross objection deserves to be allowed. 5.6 For that this inadvertent delay was unintentional and the cross objector ought not to be deprived of its statutory rights. The said delay is not due to any wilful default. Accordingly, the delay ought to be condoned in the interest of natural justice. (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 has to be excluded in view of the order passed by the Supreme Court in suo moto proceedings; and (iv) The time limit would, therefore, begin from 22.02.2020 upto 14.03.2020 and thereafter from 01.03.2022. The delay of the balance 274 days may, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 03.03.2020 and the letter addressed to the respondent sent by the Registry of the Tribunal by Registered Post with acknowledgement due was despatched on 03.03.2020. 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 03.03.2020. In terms of the section 153(1) of the Customs Act, it shall be treated to have been served on 03.03.2020. The dealy 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorised Representative). 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 03.03.2020. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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