9911796707
TMI Blog2020 (10) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... Committee of Commissioners took the decision on 05.03.2020 that the Customs Department should file appeal against the order-in-appeal before CESTAT whereafter the appeal alongwith stay application were filed on 09.06.2020 before CESTAT, Mumbai Bench. Be that as it may, since the Customs Department has preferred appeal before the CESTAT, we would refrain from expressing any opinion on merit. That leaves us with the question which we have formulated on the basis of objections raised by the respondents. The period of limitation of three months commences from the date on which the order sought to be appealed against is communicated and not from the date of decision of the Committee of Commissioners. Reverting back to the facts of the present case, according to the respondents themselves the order-in-appeal dated 29.11.2019 was received by the respondents on 18.12.2019. The limitation period of three months therefore commences from this date - The word month is not defined in the Customs Act. We therefore take recourse to the definition of the said word as provided in the General Clauses Act, 1897. Section 3 of the said act provides for various definitions and says that after co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .03.2019. It is another matter that even that order-in-assessment has been set aside by the order-in-appeal. Since there is neither any seizure nor pendency of proceeding before the adjudicating authority, question of application of section 110-A does not arise. The objections raised by the respondents are legally and factually unsustainable and thus are hereby rejected - respondent Nos.2 and 3 to release the imported watch of the petitioners forthwith in terms of the order-in-appeal dated 29.11.2019 - Petition allowed. - WP-ASDB-LD-VC-237 OF 2020 - - - Dated:- 15-9-2020 - UJJAL BHUYAN ABHAY AHUJA, JJ. Mr. Prasad Paranjape a/w. Mr. Jas Sanghavi and Mr. D. P. Poojari i/b. PDS Legal for Petitioners. Mr. Jitendra B. Mishra for Respondents-UOI. JUDGMENT and ORDER : (Per Ujjal Bhuyan, J.) Heard Mr. Prasad Paranjape, learned counsel for the petitioners and Mr. Mishra, learned counsel for the respondents. 2. By filing this petition under Article 226 of the Constitution of India, petitioners seek a direction to the respondents to give effect to the order-in-appeal dated 29.11.2019 and to allow clearance of the imported watch covered by bill of entry No.949493 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t) has allowed provisional release of the consignment subject to fulfillment of the conditions mentioned therein, viz,- 1. Submission of bond in the prescribed format for the differential amount; 2. Bank guarantee for an amount of ₹ 22,25,347.00; 3. Payment of merit duty and dues as applicable. 9. The aforesaid conditions are unreasonable and unwarranted post the order-in-appeal, according to the petitioners and therefore vide letter dated 25.05.2020, they requested respondent Nos.2 and 3 to forthwith release the imported watch by implementing the order-in-appeal and without insisting on any condition. Inspite of such demand being made, the imported watch has not been released in terms of the appellate order and without insisting on the conditions in terms of the letter dated 04.02.2020. 10. Aggrieved, present writ petition has been filed seeking the relief as indicated above. 11. Contention of the petitioner is that respondent Nos.2 and 3 are bound to comply with and implement the order-in-appeal dated 29.11.2019. No further appellate proceeding appears to have been instituted by the respondents against the order-in-appeal and in any event in the abse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . According to the respondents when the petitioners request for provisional release of the imported watch has been accepted by the respondents, there is no cause for filing the writ petition. When the appeal along with the related stay application is pending before the CESTAT, question of releasing the imported watch in terms of the orderin-appeal does not arise. In such circumstances, respondents seek dismissal of the writ petition. 13. Mr. Paranjape, learned counsel for the petitioner submits that action of respondent No.3 in not complying with the order-in-appeal despite being a subordinate authority is totally illegal and unacceptable. Mere filing of appeal against the order-in-appeal before the CESTAT is no ground for not releasing the imported watch in terms of the order-in-appeal. On a query by the Court, he submits that it was on wrong legal advice that petitioner sought for provisional release of the good. Since there is no seizure in the instant case being a case of assessment that too set aside by the appellate authority, question of provisional release of the good with stringent conditions does not arise. He, therefore, seeks a direction to the respondents to release ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmined at ₹ 1,00,49,150.00 after rejecting the declared value. Relevant portion of the order-inassessment is quoted hereunder:- 13. If selling price is ₹ 208.00096, CIF value would be ₹ 100.00. when selling price of the goods is ₹ 2,09,02,328/-, CIF value would be ₹ 1,00,49,150/-. In view of above discussion, I hereby pass the following order: ORDER 14. I hereby reject the declared value of the impugned goods imported vide Bill of Entry No.9494939 dated 02.01.2019 imported by M/s. Mangalnath Developers and re-determined the same as ₹ 1,00,49,150/- under Rule 9 of Customs Valuation Rules, 2007. 19. When the petitioners preferred appeal before the Commissioner of Customs (Appeals), by the order-in-appeal dated 29.11.2019 the appellate authority set aside the order-in-assessment and directed that the bill of entry should be assessed at the invoice price. Thus the appeal was allowed. On going through the order-in-appeal we do not find presence of any departmental representative in the appeal hearing though appellants i.e., the petitioners were duly represented by learned counsel who had also filed written submission. It doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjustment can be made in accordance with the provisions of rule 10 of these rules; and (d) the buyer and seller are not related. 8. There is no finding in the impugned order that the subject import fell within any of the situations enumerated in Rule 3 of CVR, 2007. Moreover, the price taken for comparison from e-commerce sites cannot be treated as instances indicating contemporaneous value of goods to reject the actual transaction value. It is observed that time and again the Hon ble Apex Court has held that in absence of any of the special circumstances indicated in Section 14(1) of the Act and particularized in Rule 3 of CVR, 2007 the price actually paid to the supplier shall be the basis for determination of assessable value. The department has to prove under valuation by evidence of contemporaneous imports at higher price. In absence of any such data, the transaction value cannot be discarded. (i) Century Metal Recycling Pvt. Ltd. Vs. Union of India 2019 (367) ELT 3 (SC); (ii) CCE ST Noida Vs. Sanjivani Non Ferrous Trading Pvt. Ltd. 2019 (365) E.L.T. 3 (S.C.); (iii) CC, Vishakhapatnam Vs. Aggarwal Industries Ltd. 2011 (272) ELT 641 (SC); ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms or Commissioner of Customs or as the case may be, the other party preferring the appeal. 21.3. Of course, the said limitation period is extendable under subsection (5) if CESTAT is satisfied that there was sufficient cause for not presenting the appeal within time. 22. However, the moot point to be noted is that the period of limitation of three months commences from the date on which the order sought to be appealed against is communicated and not from the date of decision of the Committee of Commissioners. This aspect was examined by this Court in the recent decision of Ganesh Benzoplast Limited Vs. Union of India, decided on 02.09.2020 , wherein it was held as under:- 27.5. What is crucial from the above is that an appeal to CESTAT has to be filed within three months from the date of communication of the order sought to be appealed against with the period of limitation extendable on sufficient cause being shown. Therefore what is of relevance is that the limitation of three months commences from the date on which the order sought to be appealed against is communicated and not from the date of decision or opinion rendered by the Committee of Commissioners und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the day in the succeeding month corresponding to the date upon which the period starts. 23.4. Supreme Court in State of H. P. Vs. M/s. Himachal Techno Engineers, 2010 AIR SCW 5088 considered the period of limitation prescribed under sub-section (3) of section 34 of the Arbitration and Conciliation Act, 1996. While section 34 relates to application for setting aside arbitral award, sub-section (3) thereof prescribes the period of limitation for such application which is three months. In that context, Supreme Court examined the meaning of the word month and held that a month does not refer to a period of 30 days but refers to the actual period of a calendar month. It was clarified that if the month is April, June, September or November, the period comprising the month will be 30 days; if the month is January, March, May, July, August, October or December, the month will comprise of 31 days; but if the month is February, the period will be 29 days or 28 days depending upon whether it is a leap year or not. After referring to section 3(35) of the General Clauses Act, 1897, it was held that the general rule is that the period ends on the corresponding date in the appropria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deducible from the above is that if the expiry of the period of limitation fell during the period from 20.03.2020 to 29.06.2020, the limitation period would stand extended to 30.06.2020 or such other date thereafter as may be notified by the central government. To avail such relaxation in terms of the 2020 Ordinance, the limitation period must expire within the period from 20.03.2020 to 29.06.2020. In so far the instant case is concerned, we have already noted that the period of limitation had expired on 18.03.2020. Therefore, reliance placed by the respondents on the 2020 Ordinance is misplaced and the said ordinance can be of no assistance to the respondents. 26. This is not to say that the Customs Department is remedy-less. As already discussed above, sub-section (5) of Section 129-A provides for extension of the limitation period if sufficient cause is shown. Customs Department would also be entitled to the benefit of the order dated 23.03.2020 passed by the Supreme Court in Suo Motu Writ Petition (Civil) No.3 of 2020. Above analysis has been made only to highlight the lackadaisical approach of the respondents. Respondents have not shown any urgency at all in the matter. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra, decided on 12.08.2020. 28. Though the order-in-appeal was received by the respondents on 18.12.2019 more than eight months have elapsed since then without respondent No.3 complying with the order of the appellate authority. In view of the decision of the Supreme Court in Kamlakshi Finance Corporation Limited (supra), this is simply not permissible. Besides, such non-implementation or non-compliance of appellate order strikes at the very root of administrative discipline and may have the effect of severely undermining the efficacy of the appeal remedy provided to a litigant under the statute. Had the respondents shown some urgency in the matter, the Court under Article 226 of the Constitution of India may have considered the request of the respondents for further time but in the present factual context, such request is unacceptable. 29. There is another aspect. Appellate authority by the order-in-appeal dated 29.11.2019 has set aside the order-in-assessment dated 25.03.2019. The effect of setting aside of an order by a superior or appellate authority was dealt with in Ganesh Benzoplast Limited (supra) wherein it has been held that when an order is set aside by a superior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct which deals with provisional release of goods etc. is section 110-A. This provision says that any goods, documents or things seized under section 110 may pending the order of the adjudicating authority be released to the owner on taking a bond from him in the proper form with such security and conditions as the adjudicating authority may require. From the above, it is seen that section 110-A will come into play only if two pre-conditions are fulfilled, namely, there must be seizure under section 110 and the goods, documents or things so seized may be subject to proceeding before the adjudicating authority. Seizure is dealt with in section 110. Sub-section (1) makes it very clear that if the proper officer has reason to believe that any goods are liable to confiscation under the Customs Act, he may seize such goods. In the instant case, admittedly there was no seizure and secondly, assessment of the good in question was not pending consideration. Assessment was already made by way of the order-in-assessment dated 25.03.2019. It is another matter that even that order-in-assessment has been set aside by the order-in-appeal. Since there is neither any seizure nor pendency of proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
