2010 (3) TMI 463 - AT - Customs

Limitation- The present appeal of the Revenue is directed against the Appellate Commissioner s order, mainly on the ground that the Commissioner (Appeals) had no jurisdiction to condone any delay of appeal beyond the condonable period of delay under the proviso to Section 128(1) of the Customs Act. Held that- where a law point raised by appellant such delay could be condoned. Such view not supported by express provisions of section 128 of Custom Act. Impugned order not tenable. Imports- clerical error in bill of entry. Mistake on part of assessee while presenting bill of entry cannot be corrected under section 154 of Custom Act, 1962. it was upto assessee to seek amendment of Bill of Entry before assessing authority on basis of documentary evidence existing at the time of clearance. However, no such action take appropriate steps, if approached by assessee with proper application steps, if approached by assessee with proper application under section 149.

Summary

Issues:
1. Condonation of delay in filing appeal by the assessed against the order of assessment.
2. Jurisdiction of the Commissioner (Appeals) to condone delay beyond the specified period.
3. Request for reassessment of the Bill of Entry under Sections 149 and 154 of the Customs Act.

Issue 1: Condonation of Delay
The Revenue filed an application seeking a stay on the impugned order where the Commissioner of Customs (Appeals) condoned a significant delay of 12 months and 29 days in the filing of an appeal by the assessed against the order of assessment. The Commissioner (Appeals) justified the condonation of delay by citing that the appellant had raised a 'law point'. However, the Appellate Tribunal held that the Commissioner (Appeals) exceeded jurisdiction by condoning the delay beyond the permissible period under Section 128(1) of the Customs Act. The Tribunal emphasized that the legislative intent did not provide for condonation of delays beyond the specified period, and the Commissioner (Appeals) erred in allowing the appeal based on this ground.

Issue 2: Jurisdiction of Commissioner (Appeals)
The learned S.D.R. cited the case of Singh Enterprises v. Commissioner, where the Supreme Court clarified that the Commissioner (Appeals) could only condone delays of up to 30 days and that the Limitation Act was not applicable to appeals filed with the Commissioner (Appeals). The Tribunal concurred with this interpretation, emphasizing that the Commissioner (Appeals) lacked the authority to condone delays beyond the prescribed period under Section 128 of the Customs Act. The Tribunal noted that the provisions of Section 128 of the Customs Act were similar to those of Section 35 of the Central Excise Act, as established in previous legal precedents. Therefore, the Tribunal set aside the impugned order of the Commissioner (Appeals) based on the lack of jurisdiction to condone the substantial delay in the appeal filing.

Issue 3: Request for Reassessment
The respondent-company submitted "cross objections" seeking to reject the department's appeal and requested reassessment of the Bill of Entry under Sections 149 and 154 of the Customs Act. The Tribunal analyzed the request and clarified that Section 154 did not apply in this case as it only authorized corrections for clerical or arithmetical mistakes made by the assessing authority, not by the assessee. The Tribunal highlighted that if the assessee believed there were errors in the Bill of Entry, they should have sought amendments before the assessing authority based on existing documentary evidence. The Tribunal referred to a previous case to illustrate the interplay between Sections 149 and 17 of the Act regarding amendment and reassessment. Ultimately, the Tribunal allowed the Revenue's appeal, emphasizing the responsibility of the assessing authority to act upon proper applications under Section 149 for amendments based on documentary evidence.

This comprehensive analysis of the legal judgment highlights the key issues surrounding the condonation of delay, the jurisdiction of the Commissioner (Appeals), and the request for reassessment under the Customs Act.