2011 (9) TMI 167 - AT - Customs

The claim of the appellant under advance licence was not accepted by the assessing authority in respect of the imported goods and the assessing authority assessed the goods at tariff rate. - the assessing authority is duty-bound to pass a speaking order within 15 days from the assessment of the bill of entry. - The dismissal of the appeal by the Commissioner (Appeals) as time-barred when there is a delay of only two days is not sustainable hence is set aside. - The matter is remanded to the Commissioner (Appeals) to decide the appeal on merits after affording an opportunity of hearing to the appellant.

Summary

Issues:
1. Stay of operation of the impugned order
2. Dismissal of appeal as time-barred without going into merits
3. Delay in filing appeal and lack of condonation
4. Requirement of a speaking order under Section 17(5) of the Customs Act
5. Dismissal of appeal by Commissioner (Appeals) as time-barred

Analysis:

1. The appellant filed an application for stay of operation of the impugned order, but it was dismissed as the duty had already been paid as per the assessment order, rendering the application infructuous.

2. The Commissioner (Appeals) dismissed the appeal as time-barred without delving into the merits, citing a delay in filing the appeal and the lack of a request for condonation by the appellant.

3. The appellant's contention was that they filed a bill of entry on a specific date, claimed the benefit of an advance license, but the benefit was denied, and they were directed to pay duty as per the tariff rate. The appellant requested a speaking order to file an appeal before the Commissioner (Appeals), highlighting a delay of only two days from the date of assessment. The appellant argued that they were not notified about the time-bar of the appeal by the Commissioner (Appeals) and cited a Tribunal decision where a similar delay was condoned.

4. The assessing authority did not accept the appellant's claim under the advance license, assessing the goods at the tariff rate. Section 17(5) of the Customs Act mandates the assessing authority to pass a speaking order within 15 days from the assessment of the bill of entry. Despite the appellant's request, no speaking order was issued. The Tribunal found the dismissal of the appeal as time-barred unjustified due to the minimal delay of two days and remanded the matter to the Commissioner (Appeals) for a decision on merits after providing an opportunity of hearing to the appellant.

5. The learned SDR representing the Revenue argued that the appeal was rightly dismissed by the Commissioner (Appeals) due to the delay in filing. However, the Tribunal disagreed, emphasizing the assessing authority's failure to issue a speaking order as required by law and setting aside the dismissal of the appeal as time-barred. The appeal was disposed of by way of remand for a fresh decision on merits.