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TMI Blog2021 (8) TMI 392X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms Act, 1962. The vessel sailed on 14.02.2018 and the shipping bill was filed much later. Show cause notice dt. 31.07.2018 was issued to the respondent alleging contravention of Section 41 of Customs Act, 1962 and proposing to impose penalty under Section 117 of the Act ibid. After due process of law, the original authority held that as per the Export Manifest (Vessel) Regulations, 1976 the EGM has to be filed within 7 days from the date of sailing of the vessel. The respondent filed the EGM on 20.02.2018 which is within time and therefore dropped the charges. Against this, the department filed appeal before the Commissioner (Appeals) raising the ground that the EGM has been filed only on 15.03.2018 and that adjudicating authority has w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2019 is well within time. The Commissioner (Appeals) ought not to have dismissed the appeal on the ground of being time barred. He relied upon the decision of the Tribunal in the case of Final Order NO.40855/2016 dt. 18.04.2016 in the case of CC (Exports), Chennai Vs Kapoor Imaging Pvt.Ltd. 4. None appeared on behalf of the respondent even though notice was issued to them. It is seen from the impugned order that the respondent has not appeared before the Commissioner (Appeals) also. The matter was therefore taken up for disposal after hearing the Ld. A.R and perusal of records. 5. At the outset, it has to be stated the Commissioner (Appeals) has not considered merits of the case but has dismissed the appeal on the ground of being t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Principal Commissioner of Customs or Commissioner of Customs, if is of the opinion that the decision or order passed by the Principal Commissioner of Customs or Commissioner of Customs is not legal or proper, may, by order, direct such Commissioner or any other Commissioner to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order, as may be specified in its order. (2) The Principal Commissioner of Customs or Commissioner of Customs may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... days". The period has to be calculated on the basis of actual calendar months. Section 3 (35) of General Clauses Act, 1897 provides that the word "month" would mean a calendar month and by extension of the term "three months‟ would only mean a period of three calendar months. Thus, the period would expire in the third month on the date corresponding to the date upon which the period starts. As a result, depending upon the months, it may be 90 days or 91 days or 92 days or 89 days, as the case may be. For example, the months of January, February, April would have different number of days. In the case of Bibi Salma Khatoon Vs State of Bihar - AIR 2001 SC 3596, it was held that when the period prescribed is a calendar month running from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued prescribing the monetary limit for filing the appeals by the department before Tribunal. When the Bench raised this point, Ld. A.R submitted that the matter involves question of law. In para-17 of the written submissions, the department has raised this contention as under : "17. Hence it is very clear from the above Board instructions that the department had to contest before higher forum for the three exception clauses given below : Adverse judgments relating to the following should be contested irrespective of the amount involved : a. Where the constitutional validity of the provisions of an Act or Rule is under challenge. b. Where notification/instruction/order or Circular has been held illegal or ultra vires. c. Classific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orizes the customs officer to take action against such non-filers. However, more than invoking the penal sections, jurisdictional Commissioners need to constantly monitor the activity of timely filing of the EGM and take necessary steps to ensure the same. (iv) Board expects its jurisdictional officers to take all necessary steps to ensure that all EGMs of cargo related to past cases are filed before 31st January, 2019. As a measure of facilitation, penal provisions may not be invoked for EGMs filed till 31st January, 2019. However, continued non-compliance beyond 1st February, 2019 may be dealt strictly by taking recourse to penal provisions in accordance with the law." In the present case, the cause of action is prior to 31.01.2019. Fu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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