2017 (12) TMI 1670 - CGOVT - Customs

Condonation of delay in filing revision application - whether delay of 89 days in filing the instant revision application is condonable in this case? - Held that - As per sub-section (2) of Section 35EE of Central Excise Act, 1944, a revision application can be filed only within 3 months from the date of communication of the Commissioner (Appeal) s order. Further, the delay of 90 days in filing the revision application can be condoned by the Government on the ground that the applicant was prevented by any sufficient cause from filing the revision application in time. The applicant has stated in their condonation of delay application that the applicant could not file the application with the Government on time because the file pertaining to present case was unfortunately misplaced in their office. The reason adduced by the applicant is manifestly very vague, casual and cannot be considered as sufficient cause which prevented them from filing the instant revision application on time as keeping the documents was entirely within their control. The applicant has not explained which document was missing because of which revision application could not be filed in time - the applicant s case is not covered by the term sufficient cause as is envisaged in Section 35EE and, therefore, the Government does not consider it serving case for condonation of delay. Hence the application filed by the applicant is time barred. Classification of goods - export of ladies knitted blouse - the contention of the applicant that their exported product are classifiable under CTH 6106 03A and the adjudicating authority has wrongly classified the same under CTH 6114 02 03A - Held that - The contention of the applicant is not found supported by any concrete material. They have merely cited description of the goods as was given in the Shipping Bill and relied upon Public Notice No. 22/2012, dated 6-7-2012 issued by Commissioner of Customs, Air Cargo (Exports), NCH, New Delhi, wherein garments of different description have been discussed for the guidance of trade and departmental officers. However, reliance on Public Notice is not sufficient here and the classification of applicant product is to be determined by the actual make, dimensions, size and other features of the products only - The sample of the exported goods was not produced before the first appellate authority and it is not produced even before the Government along with revision application or even during the personal hearing. Hence, it is not feasible for the Government at this juncture to accept the above claim of the applicant merely on the basis of the description of the exported garments given in the revision application. Revision application not maintainable on merits as well as on limitation.

Summary

Issues:
1. Condonation of delay in filing the revision application.
2. Classification of exported goods under the Customs Tariff Heading (CTH).

Analysis:
1. Condonation of Delay:
The applicant filed a revision application challenging an order related to the classification of exported goods. The application was filed 89 days late, with a request for condonation of delay. The government noted that the delay was not due to a sufficient cause as required by Section 35EE of the Central Excise Act, 1944. The applicant claimed that documents were misplaced, but the government found this reason vague and lacking seriousness. It was observed that the necessary documents could have been easily obtained, and no evidence of efforts to retrieve them was presented. Consequently, the government deemed the application time-barred due to the lack of a valid reason for the delay.

2. Classification of Exported Goods:
The applicant contended that their exported products should be classified under CTH 6106 03A, contrary to the adjudicating authority's classification under CTH 6114 02 03A. The government found the applicant's argument unsupported by concrete evidence. The applicant relied on a public notice and the description in the shipping bill, but the government emphasized that classification should be based on the actual characteristics of the products. The original adjudicating authority determined that the exported garments did not meet the criteria for blouses under CTH 6106 03A, as they lacked specific features. Notably, the sample of the exported goods was not presented during the appeal process. Consequently, the government could not accept the applicant's classification claim solely based on descriptions provided without supporting evidence.

In conclusion, the revision application by M/s. J.S. Designer Ltd. was deemed not maintainable due to both the delay issue and the lack of merit in the classification argument.