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TMI Blog2012 (11) TMI 1069X X X X Extracts X X X X X X X X Extracts X X X X ..... al Airport, Mumbai from the passengers embarking on international journey outside India on board their flights. On scrutiny of the office records and monthly returns submitted for the relevant period by the said applicant, it was observed that for the months of August, 98, September, 98 and October, 98, the payment of Foreign Travel Tax made to the Government by the applicant was short by Rs. 81,58,500/-, Rs. 68,09,009/- & 53,95,000/- and thus the applicant had contravened Rule 4 of the Foreign Travel Tax Rules, 1979. Three Show Cause Notices were therefore issued to the applicant for recovery of FTT short paid which was collected but not credited to the Central Government, along with interest @ 20% p.a. under Section 35A of Finance Act, 1979 read with Notification No. 3/94-FTT, dated 12-8-1994 and for imposition of penalty under Section 38(3) of the Finance Act, 1979. After following due process of law, the case was adjudicated by the Assistant Commissioner of Customs, FTT, CSI Airport who vide Order-in-Original dated 12-3-2008 confirmed the demand of FTT totally Rs. 2,03,62,500/- under Rule 4 of FTT Rules, 1979 along with interest of Rs. 3,67,744/- and imposed penalty of Rs. 40,7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the period prescribed by the Schedule to the Limitation Act. It is relevant here to state that Rule 13 of the FTT Rules, 1979 prescribes limitation of three months whereas Article 116 of the Schedule appended to the Limitation Act provides limitation of 90 days for filing appeal to the High Court. The relied upon case laws are:- (i) Supreme Court in the case of Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, AIR 1995 SC 2272. (ii) Harbir Singh v. Ali Hasan & Ors., AIR 1966 All. 161. (iii) Vidyacharan's case; AIR 1964 SC 1099. (iv) Income Tax v. Velingkar Brothers, (2002) 289 ITR 382 (Bom). 4.3 The appellate authority denied an opportunity to the applicants to represent themselves and to defend the case on merit inasmuch as the allegations made by respondent in the impugned Show Cause Notice were not substantiated with documentary evidence. On the contrary, the applicant had categorically established that FTT in respect of passengers who had embarked on an international journey from Mumbai CSI Airport alone was required to be deposited at Mumbai, a fact which has neither been disputed nor de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellate authority ought to have considered the replies filed by the applicant from time to time. He has also failed to appreciate that the applicant in good faith sought time to enable the applicant to collect the data from the other officers, though it was not obligatory on the part of the applicant since the obligation to collect and deposit FTT was only for Mumbai Airport. 4.6 It is respectfully submitted that all the impugned Show Cause Notices were issued in a haste without offering any opportunity to the applicant, in the normal course to reconcile the FTT paid at Mumbai for the impugned month vis-à-vis the FTT paid by applicant at other Airports from where the journey of outbound international passengers had originated. Had such an opportunity been offered by the respondent, Applicant would have immediately been able to co-relate FTT payments made at other Airports and those made at CSI Airport, Mumbai. It was also reiterated by the applicant in their numerous submissions made to the adjudicating authority subsequent to issue of impugned Show Cause Notices that had there been shortfall in collection of FTT, at Mumbai, this would have been evident before any i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 13 of the FTT Rules, 1979, the provisions of Limitation Act, 1963 should be considered and not the prescribed Act/Rules. Government notes that in this case matter the undisputed delay is of 1008 days in filing appeal before Commissioner (Appeals) has been sought to be condoned. Commissioner of Customs (Appeals), has held that as per the applicable provisions, i.e. Section 128 of the Customs Act, 1962 he has powers to condone delay up to 30 days only and therefore he rejected the appeal on time-barred without going into the merits of the case. 7.1 Government notes that applicant has filed appeal before Commissioner (Appeals) under Rule 13 of FTT Rules and the identical time limitation provisions are stipulated in Rule 13 of FTT Rules as well as Section 128 of Customs Act. For proper understanding of the issue the relevant provisions of Rule 13 of FTT Rules, 1979 are reproduced below :- "13. Appeal. - (1) Any person aggrieved by any decision or order passed, under the Act, or these rules by any officer of Customs mentioned in section 3(c) of the Customs Act, may within three months from the date of communication of such decision or order, appeal to the Collector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on merits. According to the learned Counsel for the petitioner, considering the provisions contained in Section 29(2) of the Indian Limitation Act, 1963 read with Section 5 thereof, irrespective of the fact that the matter was under the Customs Act, the appellate authority ought to have condoned the delay, examined the matter on merits, it could not have dismissed the appeal on the ground that the Commissioner (Appeals) can only condone the delay, if an appeal is presented within a period of 30 days after the statutory period of 60 days in view of Section 128 of the Act. The said Section reads as under :- "128. Appeals to Commissioner (Appeals). - (1) Any person aggrieved by any decision or order passed under this Act by an officer of Customs lower in rank than a Commissioner of Customs may appeal to the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order : Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days. (2) Every appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proviso cannot be considered to be bad or unreasonable. Under different statutes, restrictions have been placed on the exercise of the right to prefer appeals. The right of appeal is given to the party aggrieved, but that right is required to be exercised by preferring an appeal within a period of sixty days from the date of communication in view of Section 128 of the Act. At the same time, if the party aggrieved is unable to prefer an appeal within a period of 60 days, but if he prefers an appeal thereafter, within a period of 30 days, then, the appellate authority on being satisfied that he was prevented by a sufficient cause from presenting the appeal, may allow the party to present the appeal within a further period of 30 days. Thus, the right is not taken away, but by the prescribed procedure, the right is to be exercised within the period indicated. 9. In case of Collector of C.E., Chandigarh v. Doaba Co-operative Sugar Mills, reported in 1988 (37) E.L.T. 478 (S.C.), the Supreme Court pointed out that the authorities functioning under the Act are bound by the provisions of the Act. If the proceedings are taken under the Act by the Department, the provisions of limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossible interpretation as the legislative intent is clear. The period of 60 days is prescribed as limitation for preferring an appeal, secondly the appellate authority has no discretion to extend this period beyond the further period of 30 days, even if sufficient cause is shown. Reading the Section, it is very clear that the Act gives no jurisdiction to the appellate authority to extend the limitation, even in a "suitable" case for a further period of more than thirty days. It is also required to be noted that delay in disposal of revenue matters adversely effects the steady inflow of revenue and financial stability of the State. The scheme of Section 128 of the Act is, therefore, designed to ensure speedy and final determination of fiscal matters within a certain time schedule. It may apparently seem that the provision is harsh but merely because the provision is harsh it cannot be said to be bad. Be that as it may, from the scheme of the Act and the language used in Section 128, the intention of the Legislature to exclude the unrestricted application of principles of Section 5 is manifestly clear. The provision contained in the Limitation Act, which the Legislature did not, afte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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