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TMI Blog2024 (6) TMI 1429X X X X Extracts X X X X X X X X Extracts X X X X ..... ppliances Pvt. Ltd. [the appellant] to assail the common order dated 24.05.2021 passed by the Principal Commissioner of Customs, ACC (Import) [the Principal Commissioner] that confirms the demand of Rs. 2,36,92,607/- and Rs. 2,17,62,591/- raised in the two show cause notices, both dated 26.09.2018, under section 28 of the Customs Act, 1962 [the Customs Act] with interest under section 28AA of the Customs Act. 2. Customs Appeal Nos. 50510 of 2021 to 50540 of 2021 have been filed by the appellant to assail the common order dated 17.12.2020 passed by the Commissioner of Customs (Appeals) [the Commissioner (Appeals)] that rejects the 31 appeals filed by the appellant on 17.12.2019 under section 128 of the Customs Act with an application under section 14 of the Limitation Act, 1963 [the Limitation Act] for reassessment of the 31 Bills of Entry filed by the appellant for import of mobile phones. 3. The appellant imported mobile phones during the period from 09.10.2014 to 17.07.2015 and paid Additional Duty of Customs at the rate of 6% up to 28.02.2015 and thereafter, at the rate of 12.5% under section 3(1) of the Customs Tariff Act 1975 [Tariff Act] on the 31 Bills of Entry. However, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court in SRF. It had, however, paid Additional Duty at the rate of 6% upto 28.02.2015 and at the rate of 12.5% thereafter. It therefore, filed two applications on 25.09.2015 for refund of the excess Additional Duty that was paid by it. The first application was filed for refund of Rs. 2,17,62,591/- for the period from 01.10.2011 to 25.03.2015 and the second application was filed for refund of Rs. 2,36,92,607/- for the period from 27.03.2015 to 17.07.2015. 6. These two refund applications were rejected by two separate orders, both dated 30.06.2016, on the ground that the appellant had not provided reassessed Bills of Entry. Both the said orders were assailed by the appellant before the Delhi High Court in Writ Petition No. 7851 of 2016 and the Delhi High Court, by judgment dated 05.09.2016, allowed the refund claim. The respondents were directed to pay the claimed amount together with interest due upto the date of refund, which payment was required to be made within three weeks from the date of the order. The relevant portion of the order passed by the Delhi High Court is reproduced below: "The writ petitioner seeks a direction that its refund application be processed and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or rejection. We find no force in the submission. It is accordingly rejected. Since the facts are identical, we are of the opinion that the operative portion of the order should be identical to the one in Yu Televentures (supra). It is hereby directed consequently that the petitioner's refund claim is, therefore, allowed. The respondents are directed to pay to the petitioner, the claimed amount together with interest due thereof upto the date of refund - which shall be done within three weeks from today. There shall be no order as to costs." (emphasis supplied) 7. Pursuant to the aforesaid directions of the Delhi High Court, the Deputy Commissioner allowed the refund applications dated 27.09.2016. The relevant portion of the order dated 27.09.2016 in respect of 14 Bills of Entry relating to refund claim of Rs. 2,36,92,607/- is reproduced below: "Without prejudice to any of the above findings and without admitting anything to the contrary, since, the Hon'ble Delhi High Court vide judgment in W.P.(C) No. 7851/2016 in the case of M/s Vishal Video and Appliances Pvt. Ltd. Vs Union of India & Orshad directed to pay to the appellant in W.P., the claimed amount together with inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be said to be an order, much less a speaking order. This contention of the assessees was not accepted by the Supreme Court and it was held that the endorsement made on the Bills of Entry would be an order of assessment and that when there is no lis, a speaking order is not required to be passed in 'across the counter affair'. The Supreme Court then examined the provisions of sections 17 and 27 of the Customs Act, both prior to and after the amendments made by Finance Act 2011, and observed that there is no difference even after the amendments as self-assessment is also an assessment. The observations of the Supreme Court are as follows: "38. No doubt about it that the expression which was earlier used in Section 27(1)(i) that "in pursuance of an order of assessment" has been deleted from the amended provision of Section 27 due to introduction of provision as to self-assessment. However, as self-assessment is nonetheless an order of assessment, no difference is made by deletion of aforesaid expression as no separate reasoned assessment order is required to be passed in the case of self-assessment as observed by this Court in Escorts Ltd. v. Union of India & Ors. (2002-TIOL-270 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect of the provisions prior to amendment and post amendment under Finance Act, 2011, we are of the opinion that the claim for refund cannot be entertained unless the order of assessment or self assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of section 27 to set aside the order of self assessment and reassess the duty for making refund; and in case any person is aggrieved by any order which would include self assessment, he has to get the order modified under section 128 or under other relevant provisions of the Act. 48. Resultantly, we find that the order(s) passed by the Customs, Excise and Service Tax Appellate Tribunal is to be upheld and that passed by the High Courts of Delhi and Madras to the contrary, deserves to be and are hereby set aside. We order accordingly. We hold that the application for refund were not maintainable. The appeals are accordingly disposed of. Parties to bear their own coasts as incurred." (emphasis supplied) 12. Two demand-cum-show cause notices dated 26.09.2018 had earlier been issued to the appellant by the Commissioner under section 28 of the Customs Act requiri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s decided along with other matters by the Supreme Court on 18.09.2019 in ITC. What is important to notice is that prior to the decision of the Supreme Court in ITC, two demand cum show cause notices, each dated 26.09.2018, were issued by the Commissioner under section 28 of the Customs Act requiring the appellant to show cause why the erroneously sanctioned refund amount covering 31 Bills of Entry should not be recovered from the appellant. These two show cause notices had been issued in order to cover the period of limitation and it was also stated that the adjudication of these two notices would be subject to the outcome of the decision of the Supreme Court. A copy of the show cause notice was sent to the Deputy/Assistant Commissioner of Customs (Adjudication) to keep it in call book as it was a protective demand and was not to be adjudicated till the outcome of the decision of the Supreme Court. The Supreme Court decided the appeal filed by the department on 18.09.2019. These two show cause notices were ultimately adjudicated by the Principal Commissioner by a common order dated 24.05.2021. It is this order that has been assailed in the two appeals filed by the appellant. The re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2020 till 14.03.2021 stands excluded and further held that in cases where the limitation would have expired during the period between 15.03.2020 till 14.03.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 15.03.2021. In continuation to the above order, while disposing off Miscellaneous Application No. 665/2021 in SMW (C) No. 3/2020, Hon'ble Apex Court vide order dated 27.04.2021 passed in exercise of powers under Article 142 read with Article 141 of the Constitution of India ordered that the periods(s) of limitation, as prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings, whether condonable or not, shall stand extended till further orders." The Court further held that this order shall be a binding order within the meaning of Article 141 on all Courts/Tribunals and Authorities. 5.5.6 From the above it becomes abundantly clear that the period from 15.03.2020 onwards will not be included in the stipulated time limit for the purpose of finalising the instant proceedings and hence the objection raised by the noticee is not acceptable on this account. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointed out that under section 28(9A) of the Customs Act, the time specified in sub-section (9) is to be calculated from the date when the reason ceases to exist but it was not passed within 6 months from the date when the reason for keeping the adjudication on hold ceased to exists on 18.09.2019, on which date ITC was decided by the Supreme Court. The show cause notices were, therefore, required to be adjudicated by 17.03.2020, irrespective of the date of receipt of certified copy of the judgment but they were adjudicated on 24.05.2021; (ii) The order dated 08.03.2021 passed by the Supreme Court in suo-moto proceedings relating to Covid Pandemic would not be applicable in the present proceedings. A bare perusal of first order dated 23.03.2020 passed by the Supreme Court demonstrates that the said order was made applicable for institution of proceedings and not disposal thereof and in this connection reliance has been placed upon the judgment of the Supreme Court in S. Kasi vs. State [2020 (6) TMI 727 - Supreme Court]; (iii) The provisions of the Relaxation Act would also not come to the aid to the department for extending the time period for adjudicating the show cause notices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned order was passed within the stipulated time; and (iii) There was no requirement for the department to challenge the refund sanctioning orders and the amount erroneously refunded could have been claimed by the department from the appellant under section 28 of the Customs Act. 21. The submissions advanced by the learned counsel for the appellant and the learned authorized representative appearing for the department have been considered. 22. The first issue that arises for consideration is whether the requirement of section 28(9) of the Customs Act that the proper officer should determine the amount of duty under section 28(8) within six months from the date of issuance of the show cause notice is satisfied in the facts and circumstances of the case. 23. To appreciate this contention it would be appropriate to examine the relevant provisions of section 28 of the Customs Act. 24. Sub-section (1) of section 28 deals with recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded and the relevant portion is reproduced below: "(1) where any duty has not been levied or not paid or has been short-levied or short-paid or erroneously refunded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court or the Supreme Court; or (c) the Board has, in a similar matter, issued specific direction or order to keep such matter pending; or (d) the Settlement Commission has admitted an application made by the person concerned, the proper officer shall inform the person concerned the reason for non-determination of the amount of duty or interest under sub-section (8) and in such case, the time specified in sub-section (9) shall apply not from the date of notice, but from the date when such reason ceases to exist." 28. It is seen that after the notice has been issued under sub-section (1) of section 28, the proper officer has to determine the amount of duty under sub-section (8), but this has to be done within six months from the date of notice as contemplated under sub-section (9) of section 28 of the Customs Act. Further, where the proper officer is unable to determine the amount of duty under sub-section (8) for the reason that an appeal in a similar matter of the same person is pending before the Supreme Court, the proper officer shall inform the person concerned the reason for non-determination of the amount of duty and in such case, the time specified in sub-section (9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 020. 23.03.2020, 08.03.2021, 27.04.2021 and 23.09.2021 The Supreme Court in suo-moto proceedings relating to Covid Pandemic ordered that the period from 15.03.2020 till 02.10.2021 shall stand excluded in computing the period prescribed under any law for instituting proceedings, outer limits (within which the Court or Tribunal can condone the delay), and termination of proceedings. 30.06.2021 The Commissioner sought extension for adjudication of show cause notices in terms of the proviso to section 28(9), and the time period was extended by the Chief Commissioner upto 30.06.2021. 24.05.2021 Impugned order was passed confirming recovery of the refund amount. 31. The adjudication of the two show cause notices dated 26.09.2018 had been kept in abeyance owing to pendency of the appeal filed by the department before the Supreme Court and this reason ceased to exist on 18.09.2019 when the Supreme Court decided the appeal filed by the department in ITC. The period of six months from 18.09.2019 would expire on 17.03.2020. 32. The Commissioner has, in the impugned order, placed reliance upon the provisions of section 6 of the Relaxation Act which is reproduced below: "CHAPTER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. In the present case, the reason ceased to exist on 18.09.2019 when the Civil Appeal filed by the department against the judgment of the Delhi High Court was decided by the Supreme Court. Thus, the time period has to be counted from 18.09.2019 only. 36. The Principal Commissioner has also placed reliance upon the interim orders passed by the Supreme Court in suo-moto proceedings relating to Covid Pandemic to hold that the time period for adjudicating the show cause notices stood extended and the adjudication was within time. 37. In the first order in Suo Motu Writ Petition (Civil) No(s). 3 of 2020 dated 23.03.2020, the Supreme Court took suo-moto cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 virus and issued certain directions, which directions are reproduced below: "This Court has taken Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/ appeals/all other proceedings within the period of limitation prescribed under the general law of lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral law or special laws whether compoundable or not with effect from 15.03.2020 till further orders. The order dated 23.03.2020 was extended from time to time. Though, we have not seen the end of the pandemic, there is considerable improvement. The lockdown has been lifted and the country is returning to normalcy. Almost all the Courts and Tribunals are functioning either physically or by virtual mode. We are of the opinion that the order dated 23.03.2020 has served its purpose and in view of the changing scenario relating to the pandemic, the extension of limitation should come to an end. 2. We have considered the suggestions of the learned Attorney General for India regarding the future course of action. We deem it appropriate to issue the following directions:- 1. In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 14.03.2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15.03.2020, if any, shall become available with effect from 15.03.2021. 2. In cases where the limitation would have expired during the period between 15.03.2020 till 14.03.2021, notwithstanding the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 8th March, 2021 direct that the period(s) of limitation, as prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings, whether condonable or not, shall stand extended till further orders. It is further clarified that the period from 14th March, 2021 till further orders shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings. We have passed this order in exercise of our powers under Article 142 read with Article 141 of the Constitution of India. Hence it shall be a binding order within the meaning of Article 141 on all Courts/Tribunals and Authorities." (emphasis supplied) 41. Subsequently, the Supreme Court passed another order dated 23.09.2021. By this order the Supreme Court ordered that the period from 15.03.2020 to 02.10.2021 shall stan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings. *****" (emphasis supplied) 42. The show cause notices, therefore, in view of the orders dated 08.03.2021, 27.04.2021 and 23.09.2021 could have been adjudicated upto 02.10.2021 and in the present case they were adjudicated on 24.05.2021. Thus, the show cause notices were adjudicated within time. It is also seen that the Chief Commissioner had also extended the time for adjudicating the show cause notices upto 30.06.2021 by exercising powers under the proviso to section 28(9) of the Customs Act. 43. The decision of the Supreme Court in S. Kasi would not help the appellant as it interprets the order dated 23.03.2020 passed by the Supreme Court and not the orders dated 08.03.2021, 27.04.2021 and 23.09.2021 of the Supreme Court. 44. It is, therefore, not possible to accept the contention of the learned counsel for the appellant that the show cause notices were not adjudicated within the time stipulated in section 28(9) of the Customs Act. 45. Learned counsel for the appellant also submitted that the show cause notices could no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o challenge the assessment by filing an appeal to the Commissioner (Appeals) for claiming refund was to be decided by the Supreme Court in the appeal filed by the department. It cannot, therefore, be urged by the appellant that since it was not a case of erroneous refund on the date the show cause notices were issued, it was not permissible for the department to issue the show cause notices. The Supreme Court ultimately held that refund could be claimed only after the assessment orders are modified in appellate proceedings. The department had taken adequate care to keep the adjudication of these two cause notices in abeyance till the Supreme Court decided the appeal filed by the department. 49. Learned counsel for the appellant placed reliance upon the decision of the Tripura High Court in Tripura Ispat and to the decision of the Bombay High Court in United Spirits, which followed the judgment of the Tripura High Court, to contend that the appropriate remedy available to the department was to have filed an appeal against the order sanctioning refund and the remedy of issuing a notice under section 28 of the Customs Act was not available to the department. 50. This decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ept this submission. Just such a contention has been negatived by this Court in Flock (India)'s case (supra). Once an Order of Assessment is passed the duty would be payable as per that order. Unless that order of assessment has been reviewed under Section 28 and/or modified in an Appeal that Order stands. So long as the Order of Assessment stands the duty would be payable as per that Order of Assessment. A refund claim is not an Appeal proceeding. The Officer considering a refund claim cannot sit in Appeal over an assessment made by a competent Officer. The Officer considering the refund claim cannot also review an assessment order." (emphasis supplied) 53. The aforesaid legal position was also affirmed by the Supreme Court in ITC and the relevant paragraph 40 is reproduced below: "40. In Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) - 2004 (172) E.L.T. 145 (S.C.) = (2005) 10 SCC 433, the Court considered unamended provision of Section 27 of the Customs Act and a similar submission was raised which was rejected by this Court observing that so long as the order of assessment stands, the duty would be payable as per that order of assessment. ***** 41. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys beyond this period could only be condoned. These appeals were accompanied by an application under section 14 of the Limitation Act, 1963 [the Limitation Act] seeking exclusion of the time period from the date of out of charge of the respective Bills of Entry till the date of judgment of the Supreme Court in ITC on 18.09.2019. The Commissioner (Appeals) dismissed all the 31 appeals by a common order dated 17.12.2020 holding that the requirements of section 14 of the Limitation Act were not satisfied by the appellant and, therefore, the appeals filed for re-assessment of the Bills of Entry would have to be rejected as having been filed beyond the period contemplated under section 128 of the Customs Act. The relevant portion of the order passed by the Commissioner (Appeals) is reproduced below: "5.5 The contention of the Appellant that they meet the requirement of said Section 14 is misplaced. The Section 14 of the Limitation Act, requires that - (i) The plaintiff has been prosecuting with due diligence another civil proceedings; (ii) The proceeding can be in the court of first instance or appeal or revision; (iii) The proceeding relates to the same matter in issue and is p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vt. Ltd., they were not required to challenge the self assessment first before claiming refund, which they could not have done due to limitation, they took path of refund application where period was one year. Thus, the Appellant took/choose wrong path for his financial gains ignoring the law laid down by the Hon'ble Apex Court and choosing to rely upon case of Aman Medicals. ***** ***** 5.7.3 ***** In terms of said position of law, the Appellant could have claimed benefit of SRF Ltd. case only when his self-assessment (which were final in all aspects) were set aside according to law. Filing of refund application was not challenge to self-assessment. The Appellant very conveniently ignored this important law laid down by the Hon'ble Supreme Court and he cannot claim that they filed refund application in good faith. Thus the Appellant fails to meet requirement of Section 14 of the Limitation Act, 1963, in this regard also. ***** "5.10 Thus the Appellant is not eligible for benefit of section 14 of the Limitation Act, 1963 and the appeals for reassessment of bills of entry are time barred in terms of Section 128 of the Customs Act, 1962. Accordingly, I refrain from discussing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al consideration to reap the benefits arising out of the decision of the Supreme Court in SRF. 61. It is this order dated 17.12.2020 passed by the Commissioner (Appeals) that has been assailed in these appeals. 62. Learned counsel for the appellant made the following submissions: (i) The appellant had filed the refund applications within a period of one year from the date of out of charge (i.e. within limitation) on a bona-fide belief that the refund is a proper remedy available to the appellant. The refund applications had been filed pursuant to the directions issued by the Delhi High Court on 05.09.2016 in the Writ Petition filed by the appellant. It is only when the Supreme Court decided ITC on 18.09.2019 that the position of law changed. Thus, the appellant had been prosecuting with due diligence another civil proceeding; (ii) The refund applications were filed before the competent refund authorities; (iii) The proceedings before the refund authorities as well as the Commissioner (Appeals) relate to same issue i.e. availment of refund of Additional Duty on the basis of the judgment of the Supreme Court in SRF. On the day when refund applications were filed under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner, in terms of the directions issued by the Delhi High Court, allowed the refund applications by order dated 27.09.2016. The department, however, challenged the judgment of the Delhi High Court before the Supreme Court and the Supreme Court allowed the appeal in ITC holding that the claim for refund cannot be entertained unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to appropriate proceedings. This judgment of the Supreme Court in ITC was delivered on 18.09.2019. 66. It is in view of the aforesaid judgment of the Supreme Court in ITC on 18.09.2019 that the appellant filed 31 appeals before the Commissioner (Appeals) on 17.12.2019 under section 128(1) of the Customs Act together with an application under section 14 of the Limitation Act for exclusion of time for re-assessment of the 31 Bills of Entry. The appellant has been denied the exclusion of time under of section 14 of the Limitation Act by the Commissioner (Appeals) for the reason that the requirements contained in section 14 of the Limitation Act were not satisfied by the appellant. 67. The issue, therefore, that arises for consideration in these 31 appeals i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be confined to suits, appeals or applications which are made only in Courts stricto sensu. This is made even more clear by the explicit language of Section 14 by which a civil proceeding can even be a revision which may be to a quasi-judicial Tribunal under a particular statute." (emphasis supplied) 70. The Supreme Court thereafter examined whether the principles contained in section 14 of the Limitation Act would also apply to an appeal filed under section 128 of the Customs Act and in this connection observed that the principles on which section 14 of the Limitation Act is based would apply to appeals filed under section 128 of the Customs Act. The relevant observations of the Supreme Court are as follows: "We have already held that the Limitation Act including Section 14 would not apply to appeals filed before a quasi-judicial Tribunal such as the Collector (Appeals) mentioned in Section 128 of the Customs Act. However, this does not conclude the issue. There is authority for the proposition that even where Section 14 may not apply, the principles on which Section 14 is based, being principles which advance the cause of justice, would nevertheless apply. We must never forg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t not be forgotten as is pointed out in the concurring judgment in Consolidated Engineering that: "Even when there is cause to apply Section 14, the limitation period continues to be three months and not more, but in computing the limitation period of three months for the application under Section 34(1) of the AC Act, the time during which the applicant was prosecuting such application before the wrong Court is excluded, provided the proceeding in the wrong Court was prosecuted bona fide, with due diligence. Western Builders [(2006) 6 SCC 239] therefore, lays down the correct legal position." 35. Merely because Parson Tools also dealt with a provision in a tax statute does not make the ratio of the said decision apply to a completely differently worded tax statute with a much shorter period of limitation - Section 128 of the Customs Act. Also, the principle of Section 14 would apply not merely in condoning delay within the outer period prescribed for condonation but would apply de hors such period for the reason pointed out in Consolidated Engineering above, being the difference between exclusion of a certain period altogether under Section 14 principles and condoning delay. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eved is the order passed by the Superintendent. An appeal against that order has to be filed before the Commissioner (Appeals) under Section 128. By virtue of Section 129A, CEGAT has no jurisdiction to entertain such an appeal. It is clear that the impugned order is passed without any jurisdiction. Therefore, it cannot be sustained. We, thus, set aside the order. The appeal is accordingly allowed. There will be no order as to costs." (emphasis supplied) 74. After the Supreme Court delivered the aforesaid judgment on 23.05.2003, the appellant filed an appeal before the Commissioner (Appeals) against the order passed by the Superintendent on 02.04.1992. On 04.08.2003, an application to condone of delay was filed stating therein that the time taken for pursuing the remedy before another platform should be excluded for the purpose of computing the period for filing the appeal. The Commissioner (Appeals), by order dated 27.10.2003, dismissed the appeal holding that the appeal had been filed beyond the period of 60 days plus another 30 days provided in section 128 of the Customs Act. The Tribunal also dismissed the appeal filed by the appellant stating that the Commissioner (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either was there any negligence, lapse or inaction on facts nor did the appellant delay proceedings to harass the Department by pretending that there was a mistake. Condition (3) was also directly met - this Court in the order dated 12-3-2003 set aside CEGAT's order on the ground that it was without jurisdiction. It is indisputable that the earlier proceeding and the later proceeding relate to the same matter in issue and thus Condition 4 is also met. Condition 5, however, has not been met as both the proceedings are before a quasi-judicial Tribunal and not in a Court. This, however, is not fatal to the present proceeding as what is being held by us in this judgment is that despite the fact that Section 14 of the Limitation Act may not apply, yet the principles of Section 14 will get attracted to the facts of the present case. It is in this way that we now proceed to consider the law on the subject." (emphasis supplied) 76. The Supreme Court thereafter noticed that in P. Sarathi it was observed that abortive proceedings before the Appellate Authority would attract the provisions of section 14 of the Limitation Act and this judgment of the Supreme Court was in line with a large nu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me clear that the proceeding filed in 1992 was a proceeding before the wrong forum. The vested right of appeal within the period of 180 days had not yet got over. Upon the lifting of the shadow, a certain residuary period within which a proper appeal could be filed still remained. That period would continue to be within the period of 180 days notwithstanding the amendment made in 2001 as otherwise the right to appeal itself would vanish given the shorter period of limitation provided by Section 128 after 2001." (emphasis supplied) 78. The aforesaid judgment of the Supreme Court in M.P. Steel holds that the time taken by the appellant in prosecuting an abortive proceeding would have to be excluded since the appellant was prosecuting bona fide and with diligence the appeal that it had filed before the Tribunal which appeal was ultimately allowed on 23.06.1998. The appellant had assailed the order dated 03.04.1992 passed by the Superintendent of Customs before the Tribunal on 22.06.1992. The appeal filed by the department for setting aside the order passed by the Tribunal was allowed by the Supreme Court on 12.03.2003. After the decision of the Supreme Court on 12.03.2003, the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot also be urged that the earlier proceedings and the present proceedings do not relate to the same matter. In fact both the proceedings basically relate to refund of the excess amount of Additional Duty that was paid by the appellant and it is for this purpose that the appellant had relied on the judgment of the Supreme Court in SRF. Merely because the appellant had filed applications for refund of this Additional Duty of customs before the Deputy Commissioner and subsequently an appeal before the Commissioner (Appeals) for modifying the order of assessment would not mean that the two proceedings do not relate to the same matter. If it is held in the appeals that the appellant was not required to pay the Additional Duty of customs, it would result in granting relief of refund of the Additional Duty of customs. It also cannot be denied that both the proceedings were before a quasi-judicial authority. The Supreme Court held in M.P. Steel that this would not be fatal for the reason that though section 14 of the Limitation Act may not strictly apply, yet the principles of section 14 of the Limitation Act will get attracted and that section 14 of the Limitation Act should be liberal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod provided under the Statute. The period upto which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Indian Limitation Act, 1963 (in short the "Limitation Act") can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condonin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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