2024 (10) TMI 688 - HC - Customs

Condonation of delay of eighty-three days in filing the appeal - gross error of law in dismissing the appeal instead of taking of the appeal on merit - non-action on the part of the petitioner - lack of proper legal advice - HELD THAT - In terms of Section 128 of the Customs Act, the maximum time period for filing an appeal is sixty days with a condonable period of thirty days. Therefore, beyond ninety days the Commissioner of Customs (Appeals) cannot entertain an appeal. Therefore, the order passed by the Commissioner of Customs (Appeals) cannot be faulted nor order passed by the learned Tribunal. However, the facts and circumstances of the case and also the revenue involved, the appellant was refunded the special additional duty based upon the documents submitted one of which was the Chartered Accountant s certificate. The department after issuing the refund issued a show cause notice under Section 28(4) of the Act on the ground that refund has been erroneously made as the Chartered Accountant s Certificate is not a valid certificate since on the date of issuance of certificate by Chartered Accountant the Chartered Accountant was no more - what was refunded to the appellant was Rs.4,81,212/- and the amount is not a substantial amount. The case on hand is a peculiar case which would call for appropriate remedy. For the above reasons, the appeal is allowed and the order passed by the learned Tribunal, Commissioner of Customs (Appeals) and the order passed by the adjudicating authority dated 3rd November, 2016 are set aside and the matter is remanded back to the adjudicating authority namely the Refund Section of the Customs House and the appellant is directed to produce a fresh Chartered Accountant s Certificate which shall be examined, verified and a fresh order be passed by the adjudicating authority in accordance with law. Appeal allowed by way of remand.

Issues:
1. Delay in filing the appeal.
2. Dismissal of the appeal by the Tribunal on the ground of being time-barred.
3. Validity of the Chartered Accountant's certificate for refund.
4. Opportunity for the appellant to produce a fresh Chartered Accountant Certificate.
5. Amount refunded to the appellant.
6. Decision to set aside the orders and remand the matter to the adjudicating authority.

Analysis:

1. Delay in filing the appeal:
The Court acknowledged an 83-day delay in filing the appeal but condoned the delay after being satisfied with the explanation provided by the appellant. The appeal was challenging the order passed by the Customs, Excise, Service Tax Appellate Tribunal, Eastern Zonal Bench, Kolkata.

2. Dismissal of the appeal by the Tribunal:
The Tribunal had dismissed the appeal filed by the appellant as it was time-barred. The appeal filed before the Commissioner of Customs (Appeals) also met the same fate due to being filed after 173 days, exceeding the maximum allowable period of 90 days under Section 128 of the Customs Act. The Court upheld the decisions of the Commissioner of Customs (Appeals) and the Tribunal in this regard.

3. Validity of the Chartered Accountant's certificate for refund:
The appellant had received a refund of a substantial amount based on documents submitted, including a Chartered Accountant's certificate. However, a show cause notice was issued by the department questioning the validity of the certificate, as the Chartered Accountant who issued it had passed away at the time of issuance. The appellant's advocate argued that it was not a case of fraud or forgery but a mistake by the Chartered Accountant Firm.

4. Opportunity for the appellant to produce a fresh Chartered Accountant Certificate:
Considering the circumstances, the Court directed the appellant to produce a fresh Chartered Accountant's Certificate to establish the genuineness of the refund claim. The Court noted that similar cases were permitted to produce fresh certificates, and the appellant should be granted the same opportunity.

5. Amount refunded to the appellant:
The Court mentioned that the refunded amount to the appellant was Rs.4,81,212, which was not considered substantial in this case.

6. Decision to set aside the orders and remand the matter:
In a peculiar case like this, the Court found it appropriate to set aside the orders passed by the Tribunal, Commissioner of Customs (Appeals), and the adjudicating authority. The matter was remanded back to the Refund Section of the Customs House, directing the appellant to produce a fresh Chartered Accountant's Certificate for re-examination and passing of a fresh order in accordance with the law. The appeal was allowed on these grounds, leaving the substantial questions of law open for future consideration.

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