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TMI Blog2025 (1) TMI 1269X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs, reported in 2013-2 L.W.206, wherein it has been held by the Hon'ble Apex Court that the Tribunal is within the powers to condone the delay, if it is satisfied that sufficient cause for not presenting it within that period? 2. Whether the Tribunal was right in dismissing the appeal on the ground of limitation despite the fact that the delay was explained satisfactorily and that sufficient cause was made for not presenting the appeal within the said period. 3. Whether the provisions of Section 129(a) of the Customs Act can be imported to condone the delay in filing the appeal under Section 128 of the Customs Act. 2. The Ministry of Agriculture had made a request on 26.05.1973 for exemption from payment of customs duty in respect of import of fertilizers.. The representation came to be considered favourably by the Ministry of Finance, and an adhoc exemption order bearing No.408 was issued on 26.07.1973. 3. Under that exemption order, and while accepting the prayer for exemption, import of fertilizers carried on board by various Vessels had been specifically considered. The import of fertilizer by the appellant was by a Vessel by name Kanishka. A Notification had be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stating that that order had become final and had not been challenged in appeal as against which, a belated appeal was filed before the Commissioner of Customs & Central Excise (Appeals) with a delay of 323 days. 10. This appeal came to be rejected on the ground of bar of limitation, as against which, a further appeal was filed before the Tribunal, which also dismissed the appeal upholding the order of the first appellate authority dated 13.10.2008. It is as against the order of the CESTAT dated 11.11.2013 that the present appeal has been filed. 11. According to the appellant, the aforesaid sequence of events would clearly reveal merit in its claim, particularly seeing as the Ministry of Finance has itself taken a conscious view that exemption should be granted and had issued Notification dated 26.07.1973. Hence, its entitlement for refund is clear and categoric. 12. The appellant would rely on the judgements of the Supreme Court in Union of India V. Paras Laminates [1990 Supreme (SC) 433], M.P. Steel Corporation V.Commissioner of Central Excise [2015 Supreme (SC) 340] and Thakker Shipping P. Ltd. V. Commissioner of Customs (General) [2012 Supreme (SC) 776] in support of the argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 260,000 ANP during 1973-74. Fixtures of vessels detailed below have been received at this and against the above cited contracts. Sl.No. Name of Vessel Tonnage Fertiliser Port Arrival Date of Arrival/Expected Date of Arrival 1 KISTAS 8200 Amm.Nit.Phes Kandla ETA 23/05/1973 2 HORAIMARU 4960 Di-Amm.Phes Visakhaptnam 18-05-1973 3 JAG ARTI 10000 Amm.Nit. Phes Madras ETA 30/06/1973 4 JAG REKHA 7500 -do- Vizag ETA 1st Week of July 1973 6500 -do- Calcutta ETA -do- 5 PERRAIOS 15000 -do- Madras ETA 1st Week of August 1973 6 KANISHKA 10000 Di.Amm.Phos Tuticorin ETA 2nd Week July 1973 JAYANTI 20000 -do- Nagapatnam ETA 3rd Week July 1973 It is requested that adhoc exemption orders from payment of basic customs duty specified in the First Schedule to the Indian Tariff Act, 1934 and regulatory/auxiliary duty (wherever leviable) may kindly be issued at an early date and communicated to this Department for onward transmission to the FCI at port concerned for further action. (Emphasis by us) 19. We find that the Vessel Kanishka which has carried consignments that were unloaded both at Tut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the refund application would only be the Assistant Commissioner of Customs. Admittedly, a copy of the application was marked to the Assistant Collector for necessary action and no order has been passed by the Assistant Collector in this regard till date. Hence, the refund application of the appellant dated 10.10.1973 was not dealt with by the authorities at all. 25. The consignment received at Visakhapatnam Port was identical in content to that of the petitioner's consignments, and the present legal dispute is also identical to the litigation before the Bangalore CESTAT. The CESTAT has considered the argument of prospective application of the Exemption Order, rendering a finding of fact at paragraph 5 of the order, to the effect that 'we are convinced that the Exemption Certificate related only to the Bill of Entry 7273, dated 30-06-1973'. 26. The above finding of fact would apply to the present matter as well, and as we have already noted earlier, the adhoc exemption order has specifically covered the bills of entry relating to import of fertilizer on board the Kanishka. An additional argument taken in that appeal was that the goods had been imported at Nagapattina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and has cursorily closed the appeal. 32. In fact, had the CESTAT looked into the merits, it would have noted that the issue stood covered by the order of the co-ordinate Bench. In such an event, judicial discipline would require that the ratio of the order of the Bangalore Bench of CESTAT in the case of Food Corporation of India Visakhapatnam V. The Commissioner of Customs, Visakhapatnam (Appeal No.C/74/2001 dated 10.05.2006) be applied in the present matter as well as the facts and applicable legal position are identical. If at all the Madras Bench of the CESTAT did not concur with the reasoning of the Bangalore Bench, the matter ought to have been referred to a Larger Bench for decision. 33. The substantial questions of law that are admitted touch upon the aspect of limitation alone. We answer these questions in favour of the appellant. As a consequence, and in the fullness of things, the question of exemption must also be addressed which, in our view, stands fully covered by the order of the CESTAT, Bangalore dated 10.05.2006, in favour of the Appellant. 34. We do not frame a question of law on the issue of exemption, as that question does not arise directly from the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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