9911796707
TMI Blog2025 (3) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... wn, the appellant had filed an application seeking condonation of delay of 20 days stating justifiable reasons before the Commissioner Appeals. As can be seen from the grounds of the appeal before this Tribunal reproduced supra, the appeal is only on the grounds that the rejection of the appeal on the ground of limitation by the Lower Appellate Authority would be a loss for the Revenue and the Appellate Authority has not decided the case on merits. There is no explanation or justification provided for not adhering to the mandate of proviso to Section 129(D)(3) nor any explanation provided for not preferring an application for condonation of delay for filing the review order beyond the period prescribed in Section 129 D(3) before the Commissioner of Appeals in the absence of any sanction obtained/permission accorded by the Board as per proviso to Section 129D(3). In this case, neither has any evidence been let in that an application showing sufficient cause has been preferred to the Board to extend the period for filing of review order nor has any such order of the Board extending the period for filing of the review order been produced. It has also not been shown that the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicating authority, after scrutiny of the bills of entry and other relevant documents found that there is no change in the value/valuation pattern between the respondent and the foreign supplier. The adjudicating authority upon noticing a payment on account of royalty @ 3% on domestic sales and export sales subject to the approval of Central Government, then proceeded to examine the 'Financial Technical Assistance and licence Agreement. The adjudicator found, inter-alia, that the agreement does not in any way prevent the respondent from sourcing the material elsewhere and there is no condition of sale enshrined in the agreement. The adjudicating authority also found that imported goods along with other indigenous goods are used in the manufacture of finished goods and it cannot be said that the imported goods alone is used in the finished product in order to establish a nexus with the imported goods and the payments neither relate to the import goods nor is a condition of sale and held that the same did not warrant addition under Rule 10(1)(c) & (e) of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007. The adjudicating authority ordered that the declared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Ld. AR submitted that the appeal filled by the Revenue before the Commissioner (Appeals) is thus in time and the matter may be remanded to the Appellate Authority to take up the case and decide on merits. The Ld. AR placed the reliance in this regard on the decisions in:- (a) M/s.Monnet & Energy Ltd. {2010 (257) ELT 239 - CESTAT New Delhi} (b) M/s. KAP CONES {2017 (50) STR 194 - SC} (c) M/s.Vasta Biotech P. Ltd. {2024 (7) ΤΜΙ 1530 -CESTAT, CHENNAI} 6. The Ld. Counsel for the Respondent Shri N. Viswanathan supports the dismissal of the appeal by the Appellate Authority and states that the findings rendering the appeal was time barred is correct in fact as well as in law. He submits that the department had not sought any Condonation of Delay when admittedly the appellant has conceded in the statement of facts of the appeal preferred that there was a delay of 20 days in issuing the Reviewing Order requiring the filing of appeal before the Commissioner Appeals. The Ld. Counsel submits that as per mandate of Section 129(D)(3) the review order necessarily had to be made within a period of three months from the date of communication of the order in original of the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt the goods from related foreign supplier or having paid the royalty was the importer free to import the goods from any other supplier This aspect has not been examined and discussed in the order. If the importer is not in a position to import the goods from unrelated suppliers in the case of non-payment of royalty to the related foreign supplier, the royalty warrants addition in the value of the imported goods in terms of provisions of Rule 10(1)(C) & (e) Customs Valuation (Determination of Value of Imported Goods) Rules 2007" Since, the Appellate Authority has not decided the case on merits and has rejected the appeal under section 129(D) (4) of the Customs Act 1962 on the ground of limitation, there would be a loss of revenue due to the implementation of the Order in-Original though it does not appear to be legal and proper. The issue raised by the department before the Appellate Authority needs to be examined for safeguarding of the revenue." 8. As rightly contended by the Ld. Counsel for the Respondent, proviso to Section 129D(3) mandates that the Board may, on sufficient cause being shown extend the said period(the period for passing the review order) by another thirty da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ays. We shall overt to the impact of the same at a later stage." After so stating, the Honourable Apex Court then held in para 25 as under: "25. As stated earlier, we must advert to the proviso inserted in sub-section (3) to Section 35 E by the Finance Acct, 2014. The said proviso has a different purport. It empowers the Board to extend the time of passing of an order under sub-sections (1) and (2) by a period of 30 days. Once an order has been passed by the Board in exercise of the said power under the proviso, there would be no need and necessity to file an application seeking condonation of delay for the periods specified, which cannot exceed 30 days. The insertion of the said proviso by Finance Act, 2014 does not negate and is not contrary to the legislative mandate by Section 35E as it existed prior to or after insertion of the said proviso." ( emphasis supplied ). 11. As observed earlier, clause (3) of Section 35 E is pari- materia to clause (3) of Section 129D of the Customs Act, 1962 and the findings of the Honourable Apex Court in this regard is equally applicable to Section 129(3) and proviso thereto, since even in Section 129(3) the proviso was inserted w.e.f 06- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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