2023 (11) TMI 381 - AT - Customs

Condonation of delay in filing the Cross Objections - rejection on the ground that the application not filed in the manner prescribed by the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 - HELD THAT - It is seen from a perusal of section 129A(4) of the Customs Act, that it is only on receipt of notice that the party against whom the appeal has been preferred, may file within 45 days of the receipt of the notice, a Memorandum of Cross Objections - In the present case, the notice dated 26.02.2020 was sent to the respondent by the Registry of the Tribunal by registered post with acknowledgment due on 03.03.2020. The office has also reported that the said letter dated 28.02.2020 with copy of appeal was also served in the office of the Chief Commissioner (Authorised Representative) on 03.03.2020. Section 153(1) of the Customs Act provides that a notice may be served by giving or tendering it directly or on the authorised representative of the addressee, or by sending it by registered post with acknowledgment due to the person to whom it is issued. When such a notice is tendered, it shall be deemed to have been served on the date on which it is tendered and when such a notice is sent by registered post with acknowledgement due, it shall be deemed to have been received by the addressee at the expiry of the period normally taken by such post in transit unless the contrary is proved - In the present case, the copy of the appeal was tendered in the office of the Chief Commissioner (Authorised Representatives) on 03.03.2020 and the letter addressed to the respondent sent by the Registry of the Tribunal by Registered Post with acknowledgement due was despatched on 03.03.2020. All that has been stated in the application filed to condone the delay is that the copy of the appeal was not available in the file of the department and the appeal was received only on receipt of the letter dated 21.07.2022 sent by the Additional Commissioner (Authorised Representative). The department has, therefore, failed to furnish any satisfactory explanation for condoning the enormous delay in filing the Cross Objections - The Delay Condonation Application, therefore, deserves to be rejected and is rejected.

Summary

Issues Involved:
1. Condonation of delay in filing Cross Objections.
2. Compliance with the prescribed procedure for filing Cross Objections and Delay Condonation Application.
3. Assessment of refund claim and unjust enrichment.

Summary:

1. Condonation of Delay in Filing Cross Objections:
The department filed Cross Objections on 07.11.2022, with a delay condonation application for 989 days. The Tribunal noted that the notice under section 129A(4) of the Customs Act was served on 03.03.2020, and the statutory period for filing Cross Objections expired on 18.04.2020. The Supreme Court's order in suo moto proceedings extended the limitation period from 15.03.2020 to 28.02.2022, making the new deadline 15.04.2022. The department failed to file within this period and provided unsatisfactory explanations for the delay. The Tribunal rejected the Delay Condonation Application and dismissed the Cross Objections.

2. Compliance with Prescribed Procedure:
The appellant argued that the Cross Objections and Delay Condonation Application were not filed per the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982. Specifically, the documents were signed and verified by the Deputy Commissioner instead of the Principal Commissioner, and no specific authorization was given. The Tribunal did not address this objection as the Delay Condonation Application was already rejected.

3. Assessment of Refund Claim and Unjust Enrichment:
The appellant imported mobile phones and paid 6% Additional Duty of Customs, later claiming a refund based on a notification allowing a reduced rate of 1%. The Deputy Commissioner sanctioned the refund but credited it to the Consumer Welfare Fund, citing the appellant's failure to prove that the incidence of duty was not passed on to buyers. The Commissioner (Appeals) upheld this decision, noting the lack of supporting documents with the Chartered Accountant's certificate. The appellant's appeal to the Tribunal challenged this decision, but the focus remained on procedural issues regarding the Cross Objections and delay condonation.