2012 (11) TMI 1069 - CGOVT - Customs

Duty demand - Bar of limitation - Inordinate delay of 1088 days - Applicability of limitation Act - Held that - provisions of Rule 13 of FTT Rules, 1979 are pari materia with the provisions of Section 128 of Customs Act, 1962. Therefore the ratio of above judgments is squarely applicable to this case - Commissioner (Appeals) has rightly rejected the appeal as time-barred as there is no provisions under FTT Rules to condone the delay exceeding 3 months. Government therefore upholds the impugned order-in-appeal for being legal and proper. Thus the instant revision application cannot be entertained - Decision in the case of Delta Impex v. CC, New Delhi reported 2004 (2) TMI 81 - HIGH COURT OF DELHI followed - Decide against assessee.

Issues Involved
1. Whether the period of limitation prescribed for filing an appeal under Rule 13 of the Foreign Travel Tax Rules, 1979 (FTT Rules) is subject to the provisions contained in Sections 4 to 24 of the Limitation Act, 1963.
2. Whether the Commissioner (Appeals) was correct in rejecting the appeal as time-barred.
3. Whether the applicant's appeal should have been considered on merits despite the delay.

Detailed Analysis

Issue 1: Applicability of Limitation Act, 1963
The applicant argued that the period of limitation prescribed for filing an appeal under Rule 13 of the FTT Rules should be subject to Sections 4 to 24 of the Limitation Act, 1963. They cited Section 29(2) of the Limitation Act, which states that the provisions of Section 3 of the Act shall apply as if such period was the period prescribed by the Schedule to the Act, 1963, unless expressly excluded by the special or local law. The applicant contended that the FTT Rules did not expressly exclude these provisions, thus making them applicable.

Issue 2: Rejection of Appeal as Time-Barred
The Commissioner (Appeals) rejected the appeal as time-barred, noting that the appeal was filed after a delay of 1008 days. The Commissioner held that under Section 128 of the Customs Act, 1962, he could only condone a delay of up to 30 days beyond the initial 60-day period. The appeal was filed under Rule 13 of the FTT Rules, which mirrors the time limitation provisions of Section 128 of the Customs Act. The Government observed that the delay of 1008 days was far beyond the condonable period and upheld the Commissioner's decision.

Issue 3: Consideration of Appeal on Merits
The applicant argued that the appellate authority denied them an opportunity to present their case on merits, contending that the allegations were not substantiated with documentary evidence. They claimed that the FTT collected at Mumbai was accurately deposited and that the demand for additional FTT was based on incorrect data. However, the Government noted that the primary issue was the applicability of the Limitation Act, 1963, and not the merits of the case.

Legal Precedents and Judgments
The Government referred to several legal precedents to support its decision:
- Delta Impex v. CC, New Delhi: The Delhi High Court held that the provisions of Section 5 of the Limitation Act could not be applied to relax the statutory time limit for filing an appeal under Section 128 of the Customs Act.
- Singh Enterprises v. CCE, Jamshedpur: The Supreme Court held that the Commissioner (Appeals) could only condone a delay of up to 30 days and had no power to consider appeals filed beyond this period.
- The Government noted that the provisions of Rule 13 of the FTT Rules, 1979, are pari materia with Section 128 of the Customs Act, 1962, making these judgments directly applicable to the case.

Conclusion
The Government concluded that the Commissioner (Appeals) rightly rejected the appeal as time-barred, as there are no provisions under the FTT Rules to condone a delay exceeding three months. The revision application was rejected without considering the merits of the case, upholding the order-in-appeal as legal and proper.

Order
The revision application stands rejected, and the order-in-appeal is upheld.

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