9911796707
TMI Blog2025 (1) TMI 1269X X X X Extracts X X X X X X X X Extracts X X X X ..... as the reasons for condonation of delay before the Commissioner are compelling. The Appellant's representation before the third respondent had been made on 22.08.2007 and admittedly, no orders have been passed thereupon. Hence, it is quite possible and plausible, that the appellant might have been awaiting orders on the representation which delayed the filing of the statutory appeal. The impugned order of the CESTAT has taken note of none of the aforesaid parameters and has cursorily closed the appeal.
The substantial questions of law that are admitted touch upon the aspect of limitation alone - the question of exemption must also be addressed which, stands fully covered by the order of the CESTAT, Bangalore dated 10.05.2006 [2006 (5) TMI 371 - CESTAT, BANGALORE], in favour of the Appellant.
Conclusion - The substantial questions of law regarding the limitation were answered in favor of the appellant.
Appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant on payment of duty under protest. 6. It is thus that representations dated 10.10.1973 and 13.08.1976 came to be made before the 4th respondent, Superintendent of Central Excise, Customs Circle, Tuticorin/R4 seeking refund of the import duty paid. Those representations had come to be rejected by R4 on 25.08.1976 holding that the exemption did not have retrospective effect and would only operate prospectively on and from 26.07.1973. 7. According to the appellant, order dated 25.08.1976 is clearly contrary to the express and implied language of the adhoc exemption order. However, the appellant admittedly took no action as against order dated 25.08.1976 for the reason that the consignment offloaded at Visakhapatnam had also suffered the same fate as the present consignment. As against the denial of refund in that case, an appeal had been filed which travelled to the Bangalore Bench of the CESTAT that ultimately allowed the appeal by its order dated 10.05.2006. 8. Initially, the matter had been pending before the Committee on Disputes (CoD) seeking sanction for filing of statutory appeal. It was only on 21.06.2001, that FCI, Visakhapatnam had been permitted to pursue the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso draw our attention to the relevant provisions of the Customs Act, 1962 (in short 'Act') to say that the Commissioner does not have the power to condone delay beyond the specified time period as set out under the statute. 15. On merits, his submission aligns with the order of the Superintendent dated 25.08.1976 to the effect that the adhoc exemption order has been issued on 26.07.1973, subsequent to the date of the bills of entry and hence the Notification would only have prospective effect. He would rely on the judgment of the Supreme Court in Singh Enterprises V. Commissioner of Central Excise, Jamshedpur and others [2007 Supreme (SC) 1648] and Delhi High Court in Delta Impex V. Commissioner of Customs [2004 Supreme (Del) 106] and M.R.Tobacco Pvt. Limited V. Union of India and others [2004(178)ELT137(Del)]. 16. We have heard both learned counsel and have also studied carefully the facts and legal position canvassed by the parties. 17. The facts, dates and events, are, by and large admitted. Adhoc exemption order dated 26.07.1973 bearing No.408 makes specific mention of six vessels including the consignments carried thereupon, their tonnage, the Ports where they are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the exemption on the ground that the adhoc exemption order is of a later date. The very fact that the Ministry of Finance, in the adhoc exemption order has specifically referred to six Vessels including Kanishka, reveals the specific intention to extend the benefit of exemption to those Vessels. We are hence of the considered view that the present argument under consideration, runs counter to the express and avowed intention under the adhoc exemption order, and would go so far as to say that such submission ought not to have been made at all in view of the specific reference to Kanishka in that order. 22. The contents of the adhoc exemption order have been reiterated in Notification dated 11.08.1973 and have been circulated thereafter to all officers of FCI for necessary action. Since the consignment of the appellant had been offloaded even prior to the receipt of the minutes, the appellant has taken delivery of the same upon payment of customs duty and had sought refund of the duty paid on 10.10.1973. 23. We find that the refund application has been addressed to the Superintendent of Central Excise, Customs Circle, Tuticorin with copies addressed to various officers includin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. The appellant, as against order dated 17.08.2006, made a representation to the third respondent to reexamine the issue in line with the order of the Bangalore CESTAT. Admittedly, this procedure is irregular and the order of the third respondent ought to have been challenged by way of statutory appeal. This was ultimately done by the appellant, albeit with a delay of 323 days. 29. There is a difference of opinion between the parties as to whether the delay is 323 days or 412 days. We do not find this point very material as in any event it is admitted that the delay is beyond the condonable period for filing of appeal before the Commissioner of Customs (Appeals) under Section 128 of the Act, which is 60 days plus another 30 days. 30. Hence, there is nothing untoward in the order of the Commissioner of Customs (Appeals) dated 13.10.2008 dismissing the appeal on the ground of delay, as the Appellate Commissioner does not have the power to condone delay beyond 30 days. However, the second appeal before the CESTAT also met with the same fate, even though it was filed within the statutory time limit. 31. We are of the considered view that the CESTAT ought to have looked into the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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