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2023 (9) TMI 1265 - AT - CustomsMaintainability of appeal - time limitation - appeal filed after the expiry of 60 days which is prescribed under Section 128 of the Customs Act, 1962 for filing appeal before the Ld. Commissioner (Appeals) - Levy of Anti-Dumping Duty - HELD THAT - In the present case, the appellant imported Euro Grey Float Glass 3300X2140 MM 5 MM from China and filed Bill of Entry No. 9422155 dated 26.12.2018 for home consumption. But the department was of the view that the goods attract Anti Dumping Duty and directed the appellant to deposit the Anti Dumping Duty and thereafter, sent the sample for analysis and after the Report of the Laboratory came, it was found that the impugned goods do not attract Anti Dumping Duty. Thereafter, the appellant filed refund claim before the Assistant Commissioner who vide his order rejected the refund claim and the order of rejecting the said refund claim was received by the appellant on 31.01.2020 and thereafter the appellant filed appeal before the Ld. Commissioner (Appeals) on 20.03.2020 which is within the stipulated period of 60 days as prescribed in Section 128 of the Customs Act, 1962. The appeal before the Ld. Commissioner (Appeals) was very much well within the period of limitation and the dismissal of the appeal as time barred by the Ld. Commissioner is not sustainable in law, therefore, the impugned order is set aside by remanding the case back to the Ld. Commissioner (Appeals) to decide the appeal on merits and the Ld. Commissioner (Appeals) is directed to decide the same within a period of 2 months from the date of receipt of the certified copy of this order. Appeal is accordingly allowed by way of remand.
Issues involved:
The appeal against the order rejecting it as time-barred under Section 128 of the Customs Act, 1962. Facts of the case: The appellant imported "Euro Grey Float Glass 3300X2140 MM 5 MM" from China and was directed to deposit Anti-Dumping Duty. After testing, it was found that the goods did not attract Anti-Dumping Duty. The appellant filed a refund claim, which was rejected by the Assistant Commissioner. The appellant filed an appeal within the prescribed 60-day period under Section 128 of the Customs Act, 1962. Arguments by the appellant: The appellant's consultant argued that the appeal was filed within the stipulated time after receiving the Assistant Commissioner's order, not from the date of the CSIR report. It was contended that the time limitation under Section 128 is not applicable as it involves an amount collected without authority of law, citing a Supreme Court decision. Arguments by the Departmental Representative: The DR reiterated the findings in the impugned order, supporting the rejection of the appeal as time-barred. Judgment: After considering the submissions, the Member (Judicial) found that the appeal was filed within the prescribed period from the receipt of the Assistant Commissioner's order. The dismissal of the appeal as time-barred was deemed unsustainable, and the impugned order was set aside. The case was remanded back to the Commissioner (Appeals) to decide on the merits within two months from the date of receipt of the order. Outcome: The appeal was allowed by way of remand, directing the Commissioner (Appeals) to decide the case on its merits within a specified timeframe.
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