Custom, Excise & Service Tax Tribunal
M/S Seafood Park (India) Ltd vs Commissioner Of Customs on 1 May, 2013
IN CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, SOUTH ZONAL
BENCH AT BANGALORE.
Bench Division Bench
Court I
Date of hearing: 1.5.2013
Date of decision: 1.5.2013
COD Application No. 25146/2013
EH Application No. 25148/2013
Stay Application No. 25147/2013
Customs Appeal No. 25179 of 2013
(Arising out of the Order-in-Appeal No. 160/2012 dated 20.6.2012, passed by the Commissioner of
Customs (Appeals), Cochin)
For approval and signature:
Honble Shri P. G. Chacko, Member (Judicial)
Honble Shri B.S.V. Murthy, Member (Technical)
1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not ?
3. Whether Their Lordships wish to see the fair copy of the Order? Seen
4. Whether Order is to be circulated to the Departmental authorities? Yes
M/s Seafood Park (India) Ltd. Appellant/applicant
Versus
Commissioner of Customs, Respondent
Cochin.
Appearance Mr. M. S. Sanjeev Kumar, Advocate for appellant Mr. A. K. Nigam, Additional Commissioner (AR) for respondent CORAM : Honble Shri P. G. Chacko, Member (Judicial) Honble Shri B.S.V. Murthy, Member (Technical) FINAL ORDER No..Dated 01/5/2013 [Order per: P. G. Chacko] : Apart from the two applications filed by the appellant and figuring in the Cause List, there is another application filed by them (Application No. 25148 of 2013) seeking early listing of the case for hearing. After hearing both sides, we are inclined to dispose of the case summarily and, therefore, the said application has to be allowed and it is ordered accordingly.
2. One of the listed applications seeks condonation of the delay of 99 days involved in the filing of the appeal and the second application seeks waiver and stay. After hearing both sides on these applications, we proceed to dispose of the appeal itself, considering the particular facts and circumstances forthcoming.
3. This appeal is directed against an order passed by the Commissioner of Customs (Appeals) under Section 128 of the Customs Act on an appeal filed by the party against Order-in-Original No. 35/2008 dated 5.12.2008. The original authority had confirmed a demand of duty against the assessee and had directed them to pay it up with interest @ 15% from the date of clearance of the goods within 15 days from the date of receipt of Order-in-Original. Aggrieved, the assessee preferred an appeal to the Commissioner (Appeals) on 3.11.2011 with a heavy delay of nearly three years. The appellate authority found that such delay could not be condoned under Section 128 of the Customs Act and, accordingly, it rejected the appeal. The appeal before us is directed against the appellate Commissioners order.
4. The learned counsel for the appellant submits that this matter should be kept in abeyance till final disposal of a Writ Petition filed by the party against the appellate Commissioners order before the Honble High Court of Kerala. This plea is opposed by the learned Additional Commissioner (AR) who submits that the question whether the Commissioner (Appeals) has power to condone any delay beyond the condonable period of delay specified under Section 128 of the Customs Act is no longer res integra inasmuch as the Honble Supreme Court has ruled out such power. In this connection, reference is made to Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur [2008 (221) E.L.T. 163 (S.C.)] and Ketan V. Parekh vs. Special Director, Directorate of Enforcement [2012 (275) E.L.T. 3 (S.C.)]. The learned Additional Commissioner (AR) prays for dismissing the appeal.
5. We have perused the cited judgments and we find that the aforesaid question already stands settled by the apex court and, consequently, the order passed by the Commissioner (Appeals) rejecting the assessees appeal filed after three years from the date of receipt of the Order-in-Original cannot be interfered with by this Tribunal. In the case of Singh Enterprises (supra), the Honble Supreme Court held that Section 5 of the Limitation Act, 1963 was not applicable for condonation of delay of appeals filed with the Commissioner (Appeals) under Section 35 of the Central Excise Act and that the Commissioner (Appeals) was not authorised by the statute to condone any delay of such appeal beyond the condonable period of delay (30 days) specified under the proviso to sub-section (1) of Section 35 ibid. This ruling of the apex court is equally applicable to the lower Appellate authority while acting under Section 128 of the Customs Act. In other words, the Commissioner of Customs (Appeals) did not have the power to condone any delay beyond 30 days, of any appeal filed against an order of the original authority. We further note that the ratio of the ruling in Singh Enterprises (supra) was followed by a Larger Bench of the apex court in the case of Ketan V. Parekh (supra) while dealing with the question whether a High Court could, under Section 35 of the Foreign Exchange Management Act, entertain an appeal filed against the Appellate authoritys order beyond the condonable period of delay (120 days) specified under the Act.
6. In view of the ruling of the apex court which is binding on this Tribunal, we sustain the impugned order and dismiss this appeal along with the connected applications.
(Pronounced and dictated in the open court)
(B.S.V. Murthy) (P. G. Chacko)
Member (Technical) Member (Judicial)
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