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TMI Blog2017 (7) TMI 832X X X X Extracts X X X X X X X X Extracts X X X X ..... erty to the appellants, to take recourse, to the appropriate appellate remedy. 2.2.The learned Single Judge, in terms, has permitted the appellants herein, to prefer an appeal against the order dated 18.07.2016, passed by the second respondent to the Customs, Excise and Service Tax Appellate Tribunal (in short, the Tribunal). 2.3.The appellants being aggrieved by the impugned judgment, as indicated above, has preferred the present appeals. 3.At the outset, the learned counsel for the appellants says that the impugned judgment, should be set aside, on the short ground, that apart from anything else, while it discusses the merits and demerits of the appellants contention and holds that the appeal preferred before the second respondent, was not within the limitation, it simultaneously accords liberty to the appellants, to prefer a statutory appeal, before the Tribunal. 3.1.The appellants contend that given the findings recorded in the impugned judgment the Tribunal would have no leeway and therefore, no purpose would be served in relegating the appellants to a statutory remedy. 3.2.We intend, to examine this submission, during the course of our discussion. 4.Be that as it may. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted by the learned Metropolitan Magistrate, George Town, Chennai. Thereafter, the records, as it appears, were forwarded to the Additional Chief Metropolitan Magistrate Court, Egmore, Chennai. The record also shows that the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai, vide communication dated 21.03.2014 and 25.03.2014, directed the Customs Department, to receive the seized case properties, which included, four gold biscuits and two white powder coated crude gold bangles and one blue coloured jean. 6.5.Consequent to the aforesaid, it appears, that statements of both Mr.Ramki and Mr.Dilli Raja, were recorded under Section 108 of the 1962 Act, as well. 7.It may be indicated herein, that Mr.Ramki, in his statement under Section 108 of the 1962 Act, inter-alia, stated that he had been instructed by Mr.Dilli Raja, who is his maternal uncle, to visit Imphal and collect gold items from Mr.Ramachandran, Father-in-Law of Mr.Dilli Raja. 7.1.He further indicated that Mr.Dilli Raja was in the business of Steel and Textiles. The statement made by Mr.Ramki, was indicative of the fact, that he evidently visited Imphal and collected the gold items from Mr.Ramachandran. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he prescribed format, on 19.02.2016, the second respondent informed the appellants to file the appeals, in the prescribed format. 10.2.We may, only note that the letter dated 19.02.2016, indicated that the appeal should be accompanied by 7.5% of the duty/ penalty along with the proof of deposit. This letter not only indicated the period of limitation but also the fact, that if, it was not filed within 60 days, which is the period of limitation, it would have to be accompanied by a petition for condonation of delay. 10.3.Admittedly, the appeals were filed by the appellants herein, on 17.03.2016. The said appeals were accompanied with condonation of delay application and also an application for dispensing with the requirement to deposit 7.5% of the penalty imposed. 11.The office of the second respondent vide communication dated 26.05.2016, informed the appellants that there had been an amendment in the law, with effect from 06.08.2014 and therefore, there could be no waiver of the pre-deposit of 7.5% of the penalty demanded. The appellants were informed that they were required to deposit the said penalty amount in Form Tr-6 Challan, and submit the same, along with the appeal paper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt that the presentation of the appeals in the proper format on 17.03.2016 was within the condonable limit is of no avail. 11. Admittedly, the payment of 7.5% of predeposit was effected only on 13.06.2016. As on that date, the Commissioner of Customs (Appeals) had no jurisdiction to entertain or admit the appeals. Therefore, the impugned orders are perfectly justified." 14.As is indicated above, though the writ petitions were dismissed, on the ground that they were not maintainable, and after having discussed the issue of limitation, on merits, opportunity was given to the appellants, to file statutory appeals, against the order-in-original and the orders of the second respondent, before the Tribunal. 14.1.Being aggrieved, the appellants have preferred the captioned appeals. 15.The arguments on behalf of the appellants have been advanced by Mr.Derrick Sam, while those on behalf of the Revenue have been advanced by Mr.Pramod Kumar Chopda. 16.Mr.Sam, in his submission has indicated that the impugned judgment ought to be set aside on the following grounds: (i) That the learned Single Judge while granting liberty to the appellants to prefer statutory appeals with the Tribunal, ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d was that it mandated giving an opportunity to an aggrieved party, to produce evidence in support of the mandatory deposit, but did not extend the period of limitation, as was contended on behalf of the appellants. 19.2.As regards the judgment rendered in M/s.Jupiter Impex Vs. The Assistant Commissioner of Customs (Drawback), was concerned, Mr.Chopda said that the learned Judge in that case has exercised powers under Article 226 of the Constitution of India and therefore, it being a discretionary power, the direction issued therein should be confined to the facts of that case. 19.3.Mr.Chopda, advanced a similar submission with regard to the judgment of the Supreme Court rendered in M/s.Ranjit Impex. 20.We have heard the learned counsels appearing for the parties and perused the record. 21.What emerges from the record, qua, which there is no dispute is as follows: (i) The order-in-original was passed by the first respondent, on 17.12.2015; (ii) The order-in-appeal was passed by the second respondent, on 18.07.2016; (iii) The appeals, albeit, in letter format, were filed with the second respondent, by the appellants, on 16.02.2016; (iv) Upon this error been brought to the no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls 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 Principal Commissioner of Customs or 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. (1-A.) The Commissioner (Appeals) may, if sufficient cause is shown at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal. 129-E. Deposit of certain percentage of duty demanded or penalty imposed before filing appeals.- The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal,- (i) under sub-section (1) of Section 128, unless th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of lodgement of the appeal', while, entertain2 would mean 'give attention to or consideration to the matter'. 24.4.Therefore, a plain reading of the expression, 'presenting' which obtains, in proviso to Section 128 (1), as against 'entertain' which obtains, in Section 129 E, would have us, come to the conclusion that as long such appeal is presented, i.e., lodged, within the prescribed period of limitation including the condonable period, it cannot be dismissed solely on the ground that the mandatory pre-deposit of duty or penalty or both, was not made, before the expiry of the period of limitation, prescribed under Section 128 (1) read with the first proviso of the 1962 Act. 25.Mr.Chopda, during the course of his arguments, has articulated a concern on behalf of the Revenue, which is, if such an interpretation is given, then, it is likely that the aggrieved party would abuse the process of law. 25.1.While we share the concern of Mr.Chopda, it must be said that our conclusions have to be based on the language used in the Act and not based on the likelihood of abuse of the provisions by the litigants. 25.2.Having said so, in our view, the Authoriti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kes up the matter for consideration, satisfactory proof must be presented that the tax was paid within the period of limitation available for the appeal. 29.In our view, the said observations of the Full Bench have to be read in the context of the provision, which the Court was called upon to interpret in the said case. 29.1.In that case the Court was called upon to interpret the provisions of Section 31 (1) of the Tamil Nadu General Sales Tax Act, 1959 (in short, the TNGST Act). For the sake of convenience, the same, as set out in the judgment, is extracted herein below: "6. Sub-section (1) of section 31 of the Act is as follows: 31.Appeal to the Appellate Assistant Commissioner.- (1) Any person objecting to an order passed by the appropriate authority under section 4 A, section 12, section 12 A, section 14, section 15, sub-sections (1) and (2) of section 16, section 18, sub-section (2) of section 22, section 23 or section 27 [other than an order passed by an Assistant Commissioner (Assessment)] may, within a period of thirty days from the date on which the order was served on him in the manner prescribed, appeal against such order to the Appellate Assistant Commissioner (havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under Section 51 of the Tamil Nadu Value Added Tax Act, 2006 (for brevity the Act) but as it was not done, the memorandum of appeal was returned to him. The learned Single Judge disposed of the writ petition directing the assessee to comply with all the requirements as intimated by the appellate authority in the return memo dated 3-1-2011 and on such compliance, the appellate authority was directed to register the appeal and dispose of the same in accordance with the law. 3.In the writ appeal, it was contended that the appellate authority could not have returned the memorandum of appeal on the ground that Section 51 uses the term entertainand second, the amount that was due to the appellant from the Department was to be adjusted for the purpose of deposit as envisaged under Section 51 of the Act. The Division Bench came to hold that the proof of deposit of tax has to be produced at the time when the appeal is taken for consideration but not at the time of presentation of the appeal. As far as issue of adjustment is concerned, it is objected that the amount had properly been adjusted. 4.As far as the first issue is concerned, it is needless to say that the conclusion arrived by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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