2021 (8) TMI 392 - AT - Customs

Failure to file EGM in respect of shipping bill - time limitation - review order for filing the appeal before Commissioner (Appeals) was not issued within 3 months as stipulated in Section 129D (3) of the Customs Act, 1962 - penalty u/s 117 of CA - monetary limit involved in he appeal - HELD THAT - Section 129D uses the word three months‟ and not ninety days . The period has to be calculated on the basis of actual calendar months. Section 3 (35) of General Clauses Act, 1897 provides that the word month would mean a calendar month and by extension of the term three months‟ would only mean a period of three calendar months. Thus, the period would expire in the third month on the date corresponding to the date upon which the period starts. As a result, depending upon the months, it may be 90 days or 91 days or 92 days or 89 days, as the case may be - the review order issued on 08.04.2019 is well within time and the impugned order passed by Commissioner (Appeals) dismissing the Revenue appeal as time-barred is not legal and proper. The amount involved in the present case is only ₹ 50,000/- (Rupees Fifty thousand only). It is a penalty imposed under Section 117 of the Customs Act, 1962. In terms of Board‟s circular issued in F.No.390/Misc./163/2010-JC dated 17.08.2011 regarding the Government‟s litigation policy, it is stated that monetary limit for filing appeal by the department before CESTAT is ₹ 5 lakhs. Thereafter, the said monetary limit has been enhanced to ₹ 50 lakhs. The penalty is imposed under Section 117 for late filing of EGM - In the present case, the cause of action is prior to 31.01.2019. Further, there is no allegation of continued non-compliance to take recourse to penal provisions. The matter is remanded to the Commissioner (appeals) who shall decide the case on merits - The order of the Commissioner (Appeals) rejecting the appeal on the ground of being time barred is set aside - appeal disposed off.

Summary

Issues:
1. Appeal against dismissal on the ground of being time-barred.
2. Calculation of the period of limitation under Section 129D (3) of the Customs Act, 1962.
3. Interpretation of the term "three months" in Section 129D.
4. Monetary limit for filing appeals before CESTAT.
5. Penalty under Section 117 for late filing of EGM.

Analysis:

1. The department appealed against the dismissal of their case as time-barred by the Commissioner (Appeals) due to the delay in filing the EGM by the respondent.

2. The key issue revolved around the calculation of the limitation period under Section 129D (3) of the Customs Act, 1962. The Commissioner (Appeals) had computed the period from the date of dispatch of the order, while the department argued that it should be calculated from the date of communication of the order.

3. The Tribunal clarified that the term "three months" in Section 129D should be construed as three calendar months, not ninety days. The calculation should be based on the actual calendar months, starting from the date of communication of the order, as per the General Clauses Act, 1897.

4. The Tribunal also addressed the monetary limit for filing appeals before CESTAT, highlighting the department's oversight in exceeding the prescribed limit and emphasizing the need to adhere to circulars issued by the Board regarding litigation policies.

5. Finally, the Tribunal considered the penalty imposed under Section 117 for late filing of EGM, noting the instructions provided by the Board in Circular No.01/2019-Customs. The Tribunal set aside the Commissioner (Appeals)'s decision and remanded the case for a decision on merits, emphasizing the importance of timely compliance and adherence to legal provisions.

This detailed analysis of the judgment highlights the legal intricacies involved in the case, including the interpretation of statutory provisions, adherence to circulars, and the implications of late filing in customs matters.