By TIOL News Service

CHENNAI, AUG 12, 2016: THE appellant filed an appeal before the Commissioner (A) against assessment of Bill of Entry. The Commissioner(A) dismissed the appeal on the ground of delay being beyond condonable period. The BoE was assessed on 29.08.2006 and duty was paid on 13.09.2006 whereas the appeal was filed on 03.04.2007. The Tribunal also upheld the order of Commissioner (A) by holding that “Appellant's contention is that they have filed appeal not against bill of entry but against rejection of reassessment by the department which is not justified. On perusal of copy of note sheet file which is marked as AC(EDI)/DC(EDI)/DC(Gr.7) on 20.02.2007, we find that appellant cannot agitate that this is an order and this was not issued to the appellant. Therefore, the appeal is filed against Bill of Entry and not against any letter or order issued by the AC ”

Aggrieved by the same, the appellant is before the High Court.

The Appellant contended that - the assessment made on 26.08.2006, was not opposed, due to inadvertent mistake and that therefore, the Tribunal ought to have condoned the delay, by applying the law laid down in the recent judgment of the Supreme Court in M.P. Steel Corporation v. Commissioner of Central Excise 2015-TIOL-89-SC-CUS, also cannot be countenanced, for the reason that admittedly, assessment has been made on 26.08.2006; refund application has been made on 23.12.2006; and application for permission to cancel OOC and re-assess the Bill of Entry, has been made only on 03.02.2007. In this regard, Office Note, dated 02.02.2007, has already been extracted.

However, the High Court after referring to several precedent decisions on limitation, held:

+ Perusal of Memorandum of Appeals filed before the Commissioner of Customs (Appeals) shows that the appeal was filed only against the assessment order, dated 26.08.2006 and not against the decision or order, made in the request, for re-assessment. On the aspect, as to whether, the appellate authority is empowered to condone the delay of the extendable period, the Apex Court pronounced several rulings, rendered under various enactments, wherein specific time limit has been provided, for filing an appeal. The Apex Court rulings makes it abundantly clear that the Commissioner of Customs (Appeals), the appellate authority, has no powers to condone the delay, beyond the extendable period and therefore, in the instant case, without adverting to the merits, appeal has been dismissed and CESTAT, Chennai, has concurred with the said decision. Perusal of the material on record shows that the appellant, at the time of filing the instant appeal, has not raised any substantial questions of law, on the aspect of limitation. When the appeal itself is time barred and when the appellate authority or the CESTAT, Chennai, cannot condone the delay, in terms of the statutory provisions, prescribing a specific period of limitation, the substantial questions of law raised by the appellant cannot be held in favour of the appellant.

(See 2016-TIOL-1712-HC-MAD-CUS)