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TMI Blog2016 (7) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... llant. Consequently, the Civil Miscellaneous Appeal is dismissed. - Decided against the assessee. - C.M.A. No. 1161 of 2016 - - - Dated:- 15-6-2016 - S. Manikumar And D. Krishna Kumar, JJ. For the Appellant : Mr. N. Viswanathan For the Respondent : Mr. T. Chandrasekaran, CGSC JUDGMENT ( Judgement of this Court was made by S. Manikumar, J. ) Civil Miscellaneous Appeal is directed against the Final Order No.40100 of 2016, dated 25.01.2016, passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), South Zonal Bench, Chennai 600 006, declining to entertain the appeal, as time barred. 2. Short facts leading to the appeal are that the appellant submitted a Bill of Entry on 26.08.2006, for import of natural rubber and the goods were assessed. Part of goods were cleared duty-free and part of goods were cleared on payment of appropriate customs duty on 13.09.2006. Appellant has contended that the order of assessment, dated 26.08.2006, was erroneous, on the grounds that the imported goods are classifiable under CTH 4001 22 00 under CN 21/2002 Sl.No.491, which attracts duty at the rate of 20% + Nil + 2% + 4%, and at the time of assessment, the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeals is liable to be rejected as time barred. Since the appeal is decided on the limitations of time, I am not going into the merits of the case. Being aggrieved by the dismissal of the appeal, as time barred, the appellant has filed an appeal to the CESTAT, Chennai. After hearing both sides, the CESTAT, Chennai, has rejected the appeal, as hereunder: Appellant's contention is that they have filed appeal not against bill of entry but against rejection of reassessment by the department which is not justified. On perusal of copy of note sheet file which is marked as AC(EDI)/DC(EDI)/DC(Gr.7) on 20.02.2007, we find that appellant cannot agitate that this is an order and this was not issued to the appellant. Therefore, the appeal is filed against Bill of Entry and not against any letter or order issued by the AC. Accordingly, we do not find any infirmity in the impugned order. Commissioner (Appeals) has no powers to condone delay beyond condonable period. Respectfully, following the judgment of the Hon'ble Supreme Court in the case of Singh Enterprises v. CCE, Jamshedpur reported in 2008 (221) ELT 163 (SC), the impugned order is upheld. Appeal is rejected. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clusion of time of proceeding bona fide in Court, without jurisdiction and the said Section is extracted hereunder: (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of the appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a count of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02.2007, we are not inclined to accept the said contentions, for the reason that perusal of Memorandum of Appeals filed before the Commissioner of Customs (Appeals) shows that the appeal was filed only against the assessment order, dated 26.08.2006 and not against the decision or order, made in the request, for re-assessment. For better understanding, Col.Nos.3 and 4 of the Appeal filed before the Commissioner of Customs (Appeal), are reproduced hereunder: 3) Designation and address of the officer passing the decision or order appealed against and the Date of decision or order The Dy. Commissioner of Customs, EDI, Custom House, Chennai 600 001. Against the assessment B.E.No.283864/36, 26.08.2006 TRB Challan No.98599328/13.09.07 4) Date of Communication of the decision or order Appealed against to the appellant 23.02.2007 6. Material on record further discloses that there was no challenge to the internal memorandum, dated 20.02.2007, issued by the Deputy Commissioner of Customs (EDI), rejecting the request for reassessment made by the appellant and stated to have been communicated to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The issue arose out of a decision of the Special Tribunal, which dismissed the petition, declining to condone the delay. While considering the scope of Section 31 of the Tamil Nadu General Sales Tax Act, 1959, a Hon'ble Division Bench of this Court, observed that Tamil Nadu General Sales Tax Act, 1959, clearly lays down that an appeal has to be filed within thirty days from the date of receipt of the order and that an appeal may be admitted beyond that period, if the appellate authority is satisfied that the appellant had sufficient cause for not presenting the appeal within the said period. After considering the decisions in Mohd. Ashfaq v. State Transport Appellate Tribunal, U.P., [AIR 1976 SC 2161], K.Ganesh v. State of Tamil Nadu [ 1988 STC (VOL.68) 84], Kanaka Durga Agro Oil Products Ltd., v. Commercial Tax Officer, Benz Circle, Vijayawada and another [2000 STC (Vol.119) 387] and Union of India v. M/s.Popular Construction Co., [2001 (4) CTC 213], a Hon'ble Division Bench of this Court has held as follows: (a) An appeal under Section 30(1) of the Tamil Nadu General Sales Tax Act, 1959 has to be filed within 30 days before the appellate Assistant Commissioner. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e question for consideration was, whether sub-section (3 ) could be said to expressly exclude the provisions of Section-5 of the Limitation Act which gives unlimited power to the Court or a Tribunal to excuse the delay irrespective of the number of days of delay? Considering this question, the Supreme Court held: It is therefore, clear that sub-section (3) of Section 58 confers a discretion on the Regional Transport Authority to entertain an application for renewal when it is made beyond the time-limit specified in the proviso to sub-section (2), but not more than 15 days late and the discretion is to be exercised in favour of entertaining the application for renewal when it is shown that there was sufficient cause for not making it in time. Now, the question which arises is : does Section 5 of the Limitation Act, 1963 apply so as to empower the Regional Transport Authority, for sufficient cause to entertain an application for renewal even where it is delayed by more than 15 days? Section 29, sub-section (2), of the Limitation Act, 1963 makes Section 5 applicable in the case of an application for renewal unless its applicability can be said to be expressly excluded by any p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not preferring the petition within the said period. In the said Ruling, a Division Bench of this Court held that the period prescribed in the statue ( local law) is clear and that further Section 29 of the Limitation Act specifically provided that Sections 4 to 24 would apply only insofar as and to the extent to which they are not expressly excluded by such special or local law. The Court, in that case, ruled that there is an express exclusion of Section 5 of the Limitation Act. 13. The next ruling that can be usefully referred to is the one reported in Kanaka Durga Agro Oil Products Ltd., v. Commercial Tax Officer, Benz Circle, Vijayawada and another [2000 STC (Vol.119) 387]. That was a case arising under Andhra Pradesh General Sales Tax Act. In that case, the petitioner agreed for the proposed assessment and gave a letter of consent to that effect. However, long thereafter, the petitioner filed an appeal against the said assessment order with a delay of 533 days. The assessee in that case raised a contention that a turnover of ₹ 76,72,260/- representing the sale of oil extracted from oil cakes was subjected to a higher rate of tax unlike oil extracted from oil seeds, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a result. (ii) In Singh Enterprises v. Commissioner of Central Excise, Jamshedpur reported in 2008 (221) E.L.T. 163 (SC), the Hon'ble Apex Court considered a case, wherein, the Commissioner dismissed the appeal on the grounds that it was time barred and beyond the period of 30 days from the expiry of period of 60 days, prescribed for filing the statutory appeal. The High Court dismissed the writ petition. Before the Supreme Court, arguments were advanced that even though the Commissioner has no power to condone the delay, in exercise of the powers, under Article 226 of the Constitution of India, yet the High Court, can condone the delay, and such power is untrammeled by any statutory provision. Rejecting the above contention, at Paragraph 8, the Hon'ble Apex Court held as follows: 8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of Statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the Statute. The period upto which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Indian Limitation Act, 1963 (in shor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, in the case of an appeal to the High Court under Section 35G and reference application to the High Court under Section 35H, the Parliament has provided only 180 days and no further period for filing an appeal and making reference to the High Court is mentioned in the Act. In this regard, it is useful to refer to a recent decision of this Court in Punjab Fibres Ltd., Noida (supra). Commissioner of Customs, Central Excise, Noida is the appellant in this case. While considering the very same question, namely, whether the High Court has power to condone the delay in presentation of the reference under Section 35H(1) of the Act, the two-Judge Bench taking note of the said provision and the other related provisions following Singh Enterprises v. Commissioner of Central Excise, Jamshedpur, (2008) 3 SCC 70 concluded that the High Court was justified in holding that there was no power for condonation of delay in filing reference application. 19) As pointed out earlier, the language used in Section 35, 35B, 35EE, 35G and 35H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pen to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, to be judged not from the terms of the Limitation Act, but by the provisions of the Central Excise Act relating to filing of reference application to the High Court. The scheme of the Central Excise Act, 1944 support the conclusion that the time limit prescribed under Section 35H(1) to make a reference to High Court is absolute and unextendable by court under Section 5 of the Limitation Act. It is well settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Act. (emphasis supplied) (iv) In Chhattisgarh State Electricity Board v. Central Electricity Regulatory Commission reported in 2010 (5) SCC 23, the question which arose before the Hon'ble Supreme Court, was whether, Section 5 of the Limitation Act, 1963, can be invoked by the Court, for allowing an aggrieved person to file an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in section 100 of the Code of Civil Procedure, 1908 (5 OF 1908): Provided that the Supreme Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days. Sections 5 and 29 of the Limitation Act, 1963, are extracted hereunder: 5. Extension of prescribed period in certain cases.- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908) , may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.-- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section. 29. Savings.- (1) Nothing in this Act shall affect Section 25 of the Indian Contract Act, 1872 (9 of 1872). (2) Where any special or local law prescribes for any su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period of limitation prescribed for filing appeals under Sections 111(2) and 125 is substantially different from the period prescribed under the Limitation Act for filing suits etc. The use of the expression `within a further period of not exceeding 60 days' in Proviso to Section 125 makes it clear that the outer limit for filing an appeal is 120 days. There is no provision in the Act under which this Court can entertain an appeal filed against the decision or order of the Tribunal after more than 120 days. 26. The object underlying establishment of a special adjudicatory forum i.e., the Tribunal to deal with the grievance of any person who may be aggrieved by an order of an adjudicating officer or by an appropriate commission with a provision for further appeal to this Court and prescription of special limitation for filing appeals under Sections 111 and 125 is to ensure that disputes emanating from the operation and implementation of different provisions of the Electricity Act are expeditiously decided by an expert body and no court, except this Court, may entertain challenge to the decision or order of the Tribunal. The exclusion of the jurisdiction of the civil cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to exercise any discretion beyond the period stipulated by law and that the appeal filed beyond the prescribed period of limitation is not maintainable as being barred by limitation. 17. It is well settled law that once the period of limitation has run itself out, the Appellate Authority does not have power to condone the delay in filing the appeal beyond the maximum period prescribed under the Act. Referring to Singh Enterprises case [2008 (221) E.L.T. 163 (S.C)], Tribunal has rightly dismissed the appeal. We do not find any infirmity in the order of the Tribunal and no substantial questions of law involved in this appeal and the appeal is dismissed. (vi) Albert v. Commissioner of Service Tax, Chennai reported in 2015 (37) STR 187 (Mad.), was a case of an ex-parte adjudication and an appeal was filed with delay. CESTAT, Madras, dismissed the appeal, as time barred. Substantial questions of law raised before this Court, are, (1) Whether the Appellate Tribunal is right in upholding the order of the Commissioner (Appeals), dated 07.08.2012, dismissing the appeal as time barred? and (2) Whether the Appellate Tribunal ought to have entertained the appeal and set aside the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not raised any substantial questions of law, on the aspect of limitation. By way of memo, dated 13.06.2016, the appellant has raised the following substantial questions of law, (1) Whether in the facts and circumstances of the case, the 1st respondent Tribunal was correct in not considering the fact that there being no lis arising out of the order of assessment passed in the Bill of Entry, dated 26.08.2006 which warranted the adjudication by the Commissioner of Customs (Appeals) in asmuch as the Revenue had already conceded and did not at all dispute the eligibility of the appellant herein to the benefit of the classification of the goods imported by them under Chapter Sub-Heading 40 01 22 00 to the Customs Tariff Act and the attendant benefit to Notification No.21/2002, dated 01.03.2002 (Serial No.191) resulting in collection of the excess duty from them amounting to ₹ 2,55,560/- without the authority of law, and therefore, in such a factual position the ratio laid down by the Hon'ble Delhi High Court in the judgment reported in 2010 (250) ELT 30 (Del.), should have been applied to their case? (2) Whether the Tribunal was correct in not following the recen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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