2016 (6) TMI 69 - CGOVT - Customs

Period of limitation - Demand of already sanctioned drawback and imposition of penalty - Applicant were initially granted drawback for exports made by him - Sale proceeds in respect of export made by the applicants were realized within the prescribed time limit through the nominated bank - Appeal filed after 90 days (stipulated initial 60 days period plus 30 days condonable period). Held that - as per Section 128 of customs Act, 1962, commissioner (Appeals) is empowered to condone delay upto 30 days in filling appeal. There is no provision in Section 128 ibid to condone delay exceeding 30 days. Hon ble Allahabad High Court in the case of M/s Doaba Rolling Millls (P) Ltd. Vs. CESTAT, New Delhi 2004 (2) TMI 77 - HIGH COURT OF JUDICATURE AT ALLAHABAD , has also held that the Commissioner (Appeals) under Section 128(1) ibid cannot condone delay in filling appeals beyond 30 days, as the statute itself provides for a period of limitation, and further maximum period for which delay can be condoned, the authority cannot extend the same. Government also notes that Hon ble Supreme court in the case of Singh Enterprises vs. CCE Jamshedpur 2007 (12) TMI 11 - SUPREME COURT OF INDIA has held that commissioner (Appeals) is empowered to condone delay upto 30 days and has no power to allow appeal to be presented beyond the delay 30 days. 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 after the expiry of 60 days which is the normal period for preferring appeal under Section 35 of the Central Excise Act, 1944. The provisions of section 128 of the Customs Act, 1962 and Section 35 of the Central Excise Act, 1944 are identical and the ratio of above said judgments squarely applicable to this case. Therefore, the Commissioner (Appeals) has rightly rejected the appeal as time barred. - Revision applications are rejected

Summary

Issues:
Appeal against Order-in-Appeal passed by Commissioner of Customs, Central Excise & Service Tax; Recovery of already sanctioned drawback; Time-barred appeal before Commissioner (Appeals); Revision applications under Section 129 DD of Customs Act, 1962; Grounds for revision applications; Failure to submit BRC evidencing realization of foreign proceeds; Condonable period for appeal filing; Limitation on condoning appeal delay beyond 30 days.

Analysis:
The revision applications were filed against the Order-in-Appeal passed by the Commissioner of Customs, Central Excise & Service Tax. The applicants had been granted drawback for their exports initially, but show cause notices were issued later for the recovery of the sanctioned drawback due to the failure to provide evidence of realizing export proceeds within the stipulated time frame under the Foreign Exchange Management Act, 1999. The Orders-in-Original confirmed the demand for drawback and imposed penalties in some cases. The applicants then filed appeals before the Commissioner (Appeals), which were rejected as time-barred for being filed beyond the allowed 90-day period. Subsequently, the applicants filed revision applications under Section 129 DD of the Customs Act, 1962, raising various grounds.

The applicants contended that the orders were unsustainable as the export proceeds were indeed realized within the prescribed time limit through the nominated bank. They argued that they believed they had complied with all mandatory requirements, submitting BRCs either before the show cause notices were issued or during adjudication proceedings. They claimed that the orders lacked merit, were contrary to facts, and violated principles of natural justice. They also argued that they had not contravened any laws warranting the demand for drawback, interest, and penalties.

The Government reviewed the case records, submissions, and the impugned Orders-in-Original and Orders-in-Appeal. It noted that the original authority confirmed the demand for drawback due to the failure to submit BRCs evidencing the realization of foreign proceeds for the exported goods. The Commissioner (Appeals) rejected the appeal as time-barred, filed beyond the condonable 90-day period. The Government highlighted that the Commissioner (Appeals) could only condone a delay of up to 30 days in filing an appeal, as per Section 128 of the Customs Act, 1962. Citing legal precedents, the Government emphasized that the appellate authority could not extend the condonable period beyond 30 days. Therefore, despite not delving into the merits of the case, the Government upheld the rejection of the appeal as time-barred, concluding that the Orders-in-Appeal were valid.

In light of the above circumstances, the Government rejected the revision applications, emphasizing the importance of adhering to the statutory limitations on appeal filing. The Orders-in-Appeal were upheld, and the revision applications were dismissed accordingly.