Customs, Excise and Gold Tribunal - Mumbai
Khanbhai Esoofbhai vs Commissioner Of Central Excise, Rajkot on 4 July, 2001
Equivalent citations: 2002(147)ELT712(TRI-MUMBAI)
ORDER J.H. Joglekar, Member (T)
1. After hearing both sides, we take up the appeals for disposal. These three appeals having the same facts and having been filed by the same appellant, are disposed of vide this single order.
2. The appellant is engaged in the activity of ship-breaking. the ships were imported by him in February and May, 1993. The ships were cleared on payment of additional duties of customs. Modvat credit was taken on such duty paid on the first two ships but was not taken on the third vessel imported in May, 1993. Part of the goods obtained by such breaking from the ships were cleared without payment of duty in terms of certain provisions. Show cause notices were issued seeking reversal of such credit availed of. The notices presumed that the credit of additional duty was taken on the third vessel also. The assessee reversed the proportionate credit taken on the first two vessels where certain goods were cleared without payment of duty. It appears that certain other notices were sent to other ship-breakers where the allegations were similar. The Assistant Commissioner passed single order covering a number of importers. The order confirmed the alleged demand. The order was issued to the present appellant. The order was prefaced by a preamble advising the present appellant to file an appeal before the Commissioner(Appeals), Customs & Excise, Ahmedabad, if he was aggrieved by that order. Three appeals were filed by the present appellant against this order. Where the date of the order-in-original was 7.1.1998, the three appeals were filed on 16.12.2000 and 21.12.2000. The Commissioner (Appeals) disposed of the three appeals before him in identical orders holding that the appeals were field beyond the period prescribed in the Act and therefore dismissed the three appeals. These appeals before us arise out of this order.
3. Shri J.C. Patel claimed that there was no liability on the importers at all. Where the goods were cleared without payment of duty, the proportionate credit had been reversed. In the case of the last vessel imported in May 1993, since the importers had not availed of the credit, the question of reversal did not arise. He submitted that the importers had not attended the personal hearing. On receipt of the order-in-original they contacted the Assistant Commissioner and on being explained the position they were advised that the errors would be rectified. For nearly two years the demand was not enforced. This led the importers to presume that the department had corrected the error. However, later when enforcement was sought to be mad,e the importers field the appels. Shri Patel relies upon the Tribunal judgment in the case of Mark Auto Industries vs. CCE, New Delhi 2000 (42) RLT 756 to claim that where the assessee's case is strong on merit, and where the first appellate authority has dismissed the appeal on a point of limitation, the Tribunal could take up the appeal for disposal even after conceding that the impugned order was correct in law.
4. We have perused the cited judgment. We are also aware of a similar view held by this very bench.
5. The provisions of the relevant Acts prescribe the period within which the appeals are required to be filed before the Commissioner (Appeals) as well as before the Tribunal. The Commissioner has a limited power of condonation that is of three months. No such bar is placed on the powers of the Tribunal. In a particular situation where the Commissioner finds that condonation is beyond his powers under the law and therefore cannot go into the merits, the Tribunal may hold that the bar before the Commissioner should not debar the assessee from claiming his rights. In this mind the cited judgment was made. The text of that judgment shows that the total period elapsed between the passing of the first order and the filing of the appeal was about 11 months. It is not known when the original order was received by the assessee because that would be the date material for counting the period of limitation. It would however appear t hat the delay was not very substantial. In the present case we find that the delay was over 20 months.
6. The most significant issue is that each original order contained the preamble advising the assessee as to the mode of appealing. If it was no so, then the appellant was justified in continuing the matter with the department.In reply to a specific query Shri Patel claimed that the other persons forming party to the first order had gone through the appellate channel and have been awarded the relief. In the face of the requirement, if the assessee chose not to follow the letter of law, he cannot come here and claim that the case was strong on merits. T he relevant Acts contain an extra-ordinary provision that where the Tribunal on noticing an apparent mistake in their order is capable of rectifying the mistake within a prescribed period. This power is not vested in subordinate appellate or adjudicating authorities. It was therefore idle for the assessee to claim that the Assistant Commissioner could have corrected the error.
7. Shri Patel submits where the mistake are typographical they could be corrected. The present proceeding could not be covered under that provision.
8. We thus find that the assessee had chosen to disregard the normal code of law even when it was pointed out to him. We find that the Commissioner (Appeals) was correct in dismissing the appeal before him. His orders are upheld. These appeals are dismissed.
9. The stay applications also stand disposed of.
(Dictated in Court)