Custom, Excise & Service Tax Tribunal
Shri Umesh Kumar Bhardwaj vs Hyderabad - Customs on 20 January, 2025
(1)
C/30748-30757/2024
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
REGIONAL BENCH AT HYDERABAD
Division Bench - Court No. - I
Customs Appeal No. 30748 of 2024
(Arising out of Order-in-Appeal No. HYD-CUS-000-APP1-227 & 228-23-24 dt.27.03.2024
passed by Commissioner of Customs & Central Tax (Appeals-I), Hyderabad)
M/s SpiceJet Limited
Plot No.8F, Sy.No.99/1, GMR Aerospace & Industrial ......Appellant
Park, RGIA, Shamshabad, Hyderabad - 500 108
VERSUS
Commissioner of Central Tax
Hyderabad - Customs
GST Bhavan, LB Stadium Road,
......Respondent
Basheerbagh, Hyderabad - 500 004 with Customs Appeal No. 30749 of 2024 (Arising out of Order-in-Appeal No. HYD-CUS-000-APP1-227 & 228-23-24 dt.27.03.2024 passed by Commissioner of Customs & Central Tax (Appeals-I), Hyderabad) Shri Chandan Sand Sr. VP (Legal) & Company Secretary, ......Appellant M/s Spicejet Ltd, Terminal 1D, IGI Airport, New Delhi - 110 037 VERSUS Commissioner of Central Tax Hyderabad - Customs GST Bhavan, LB Stadium Road, ......Respondent Basheerbagh, Hyderabad - 500 004 with Customs Appeal No. 30750 of 2024 (Arising out of Order-in-Appeal No. HYD-CUS-000-APP1-227 & 228-23-24 dt.27.03.2024 passed by Commissioner of Customs & Central Tax (Appeals-I), Hyderabad) Shri Nihar Ranjan Parida Sr. General Manager (SGM), M/s Spicejet Ltd, ......Appellant Terminal 1D, IGIA, New Delhi - 110 037 VERSUS Commissioner of Central Tax Hyderabad - Customs GST Bhavan, LB Stadium Road, ......Respondent Basheerbagh, Hyderabad - 500 004 with Customs Appeal No. 30751 of 2024 (Arising out of Order-in-Appeal No. HYD-CUS-000-APP1-227 & 228-23-24 dt.27.03.2024 passed by Commissioner of Customs & Central Tax (Appeals-I), Hyderabad) Shri Umesh Kumar Bhardwaj Sr. General Manager (SGM), M/s Spicejet Ltd, ......Appellant Terminal 1D, IGIA, New Delhi - 110 037 VERSUS Commissioner of Central Tax Hyderabad - Customs GST Bhavan, LB Stadium Road, ......Respondent Basheerbagh, Hyderabad - 500 004 (2) C/30748-30757/2024 with Customs Appeal No. 30752 of 2024 (Arising out of Order-in-Appeal No. HYD-CUS-000-APP1-227 & 228-23-24 dt.27.03.2024 passed by Commissioner of Customs & Central Tax (Appeals-I), Hyderabad) Shri K.N. Anil Kumar Warehouse Manager, Spicejet FTWZ, Plot No.8F, ......Appellant Sy.No.99/1, GMR Aerospace & Industrial Park, RGIA, Shamshabad, Hyderabad - 500 108 VERSUS Commissioner of Central Tax Hyderabad - Customs GST Bhavan, LB Stadium Road, ......Respondent Basheerbagh, Hyderabad - 500 004 with Customs Appeal No. 30753 of 2024 (Arising out of Order-in-Appeal No. HYD-CUS-000-APP1-227 & 228-23-24 dt.27.03.2024 passed by Commissioner of Customs & Central Tax (Appeals-I), Hyderabad) M/s SpiceJet Limited Plot No.8F, Sy.No.99/1, GMR Aerospace & Industrial ......Appellant Park, RGIA, Shamshabad, Hyderabad - 500 108 VERSUS Commissioner of Central Tax Hyderabad - Customs GST Bhavan, LB Stadium Road, ......Respondent Basheerbagh, Hyderabad - 500 004 with Customs Appeal No. 30754 of 2024 (Arising out of Order-in-Appeal No. HYD-CUS-000-APP1-227 & 228-23-24 dt.27.03.2024 passed by Commissioner of Customs & Central Tax (Appeals-I), Hyderabad) Shri Chandan Sand Sr. VP (Legal) & Company Secretary, ......Appellant M/s Spicejet Ltd, Terminal 1D, IGI Airport, New Delhi - 110 037 VERSUS Commissioner of Central Tax Hyderabad - Customs GST Bhavan, LB Stadium Road, ......Respondent Basheerbagh, Hyderabad - 500 004 with Customs Appeal No. 30755 of 2024 (Arising out of Order-in-Appeal No. HYD-CUS-000-APP1-227 & 228-23-24 dt.27.03.2024 passed by Commissioner of Customs & Central Tax (Appeals-I), Hyderabad) Shri Nihar Ranjan Parida Sr. General Manager (SGM), M/s Spicejet Ltd, ......Appellant Terminal 1D, IGIA, New Delhi - 110 037 VERSUS Commissioner of Central Tax Hyderabad - Customs GST Bhavan, LB Stadium Road, ......Respondent Basheerbagh, Hyderabad - 500 004 (3) C/30748-30757/2024 with Customs Appeal No. 30756 of 2024 (Arising out of Order-in-Appeal No. HYD-CUS-000-APP1-227 & 228-23-24 dt.27.03.2024 passed by Commissioner of Customs & Central Tax (Appeals-I), Hyderabad) Shri Umesh Kumar Bhardwaj Sr. General Manager (SGM), M/s Spicejet Ltd, ......Appellant Terminal 1D, IGIA, New Delhi - 110 037 VERSUS Commissioner of Central Tax Hyderabad - Customs GST Bhavan, LB Stadium Road, ......Respondent Basheerbagh, Hyderabad - 500 004 and Customs Appeal No. 30757 of 2024 (Arising out of Order-in-Appeal No. HYD-CUS-000-APP1-227 & 228-23-24 dt.27.03.2024 passed by Commissioner of Customs & Central Tax (Appeals-I), Hyderabad) Shri K.N. Anil Kumar Warehouse Manager, Spicejet FTWZ, Plot No.8F, ......Appellant Sy.No.99/1, GMR Aerospace & Industrial Park, RGIA, Shamshabad, Hyderabad - 500 108 VERSUS Commissioner of Central Tax Hyderabad - Customs GST Bhavan, LB Stadium Road, ......Respondent Basheerbagh, Hyderabad - 500 004 Appearance:-
Shri A.P. Suresh, Advocate for the Appellants.
Shri B. Sangameshwar Rao, AR for the Respondent.
Coram: HON'BLE MR. A.K. JYOTISHI, MEMBER (TECHNICAL) HON'BLE MR. ANGAD PRASAD, MEMBER (JUDICIAL) FINAL ORDER No. A/30015-30024/2025 Date of Hearing: 20.12.2024 Date of Decision: 20.01.2025 [Order per: ANGAD PRASAD] All these appeals arise out of common OIA dt.27.03.2024 passed by Commissioner (Appeals), wherein, he dismissed the appeals on the sole ground of limitation (time barred).
2. Learned Counsel for the appellants submitted that appellants has given satisfactory explanation for the delay, which should have been considered by the Commissioner (Appeals) but he dismissed the appeals without considering the same. On the other hand, learned AR for Revenue (4) C/30748-30757/2024 stated that the Adjudicating Authority has no power to condone the delay beyond the condonable period. It is also pointed out that in the memorandum of appeal, the Commissioner (Appeals) was mentioned as Additional Commissioner instead of Commissioner (Appeals). In this response, learned Counsel for the appellants stated that in the memorandum of appeal, the word Additional Commissioner is a typographical error.
3. We find that in the memorandum of appeal, the word additional commissioner appears at so many places and learned Counsel clarified that it was a typographical error and prayed that the word 'additional commissioner' may be presumed as 'Commissioner (Appeals)'. We accept the same and proceed to take up the case. Since all the appeals are covered by same OIA, we take up all these appeals together for disposal.
4. We heard learned Counsel for the appellant, Shri A.P. Suresh and learned Authorized Representative for the department, Shri B. Sangameshar Rao and perused the records.
5. The Orders-in-Originals have been passed on 13.03.2023 & 14.03.2023. The appellants have claimed that the said OIOs were communicated to them on 20.03.2023 and the appeals were filed before the Commissioner (Appeals) on 03.10.2023 i.e., after more than 6 months. Prior to filing the appeals before the Commissioner (Appeals), the appellants have filed Writ Petition No.34172 of 2023, wherein, the Hon'ble High Court of Telangana has disposed the writ petition with directions at Para 6, which is reproduced below:-
"6. The Writ Petition, therefore stands disposed of with a direction to respondent No.1 to immediately register the appeal that the petitioners have filed on 11.09.2023. Even if the appeal is barred by time, the appeal should still be registered and decided on its own merits. The appellate authority can reject the appeal either on the ground of the Commissioner (Appeals) not having the power to condone the delay beyond a particular period or for the appellants having not provided satisfactory ground for not preferring the appeal within the limitation period......"
6. Commissioner (Appeals), after hearing both sides, in the impugned order has observed that Appellate Authority has no power to allow the appeal presented beyond the period of thirty days after normal period of (5) C/30748-30757/2024 limitation of sixty days, for condoning such delay was not warranted and therefore, rejected the appeals as time barred.
7. In this regard Section 128 of the Customs Act is relevant and is reproduced below:-
"Section 128. Appeals to Commissioner (Appeals) -
(1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a Principal Commissioner of Customs or Commissioner of Customs may appeal to the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order.
Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days."
8. Therefore, the Commissioner (Appeals) has power to entertain appeal within 60 days from the date of communication of such decision or order and he may allow such appeal within further period of 30 days after giving finding on sufficient cause on which the appellant was prevented to file appeal within stipulated time period.
9. Hon'ble Supreme Court in the case of M/s Singh Enterprises Vs Commissioner of Central Excise, Jamshedpur [2008 (221) ELT 163 (SC)] has, inter alia, held that the Commissioner (Appeals) has no power to condone the delay beyond the condonable period of 30 days. In this regard, para 8 of the order is reproduced below:-
"8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of Statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the Statute. The period upto which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Indian Limitation Act, 1963 (in short the 'Limitation Act') can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only upto 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is (6) C/30748-30757/2024 complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period."
10. In the case of M/s Resolute Electronics Pvt Ltd Vs Union of India [2015 (319) ELT 51 (AP)], Hon'ble High Court of Andhra Pradesh has held as follows:-
"5. We think that the petitioner keeping eyes open allowed the period for preferring the appeal as well as that of for condonation of delay allowed to expire and thereafter he approached. In other words, the petitioner had fitter away its own remedy. Therefore alleged situation of remediless is its own creation. According to us, the provision of Section 35(1) of the Act is absolutely rigid and cannot be extended either directly or indirectly by the Court of law. We set out the provision of Section 35(1) of the Act hereunder:
"35. Appeals to Commissioner (Appeals). - (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer lower in rank than a Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals), within sixty days from the date of the communication to him of such decision or order : Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days."
6. It is clear that it is specific mandate that even Section 5 of the Limitation Act, 1963 by virtue of Section 29(2) thereof, will not be applicable beyond 90 days. We are further of the view that once this period is allowed to expire intentionally or unintentionally, then remedy is absolutely barred and no Court of law can entertain the matter. However, the petitioner availed alternative remedy unsuccessfully, so we are not considering this aspect in great detail."
11. In the case of Commissioner of Customs-II Vs Poonam Courier Pvt Ltd [2021 (376) ELT 60 (Bom.)], the Hon'ble High Court of Bombay has held as follows:-
"...... CESTAT as a statutory tribunal is a creature of the statute and exercises powers and functions conferred by the statute. It is constituted under Section 129 of the Customs Act and exercises jurisdiction under Section 129A in the manner provided in Section 129C. It can only pass such orders as is provided in Section 129B. It does not possess plenary jurisdiction like a High Court exercising jurisdiction under Article 226 of the Constitution of India. The self imposed restrictions which a High Court exercises while refraining from invoking its writ jurisdiction in the face of adequate and efficacious alternative remedy is not available to a statutory Tribunal like the CESTAT whose powers and functions are circumscribed by the statute..."(7)
C/30748-30757/2024
12. There is catena of judgments including jurisdictional High Court to the effect that Tribunal is a creature of statute and therefore, it is bound by statutory provisions. Some of these judgments are cited below:-
a) 1997 (91) E.L.T. 502 (S.C.) - NORTHERN PLASTICS LTD. Versus HINDUSTAN PHOTO FILMS MFG. CO. LTD. - The Appellate Tribunal is constituted as per Section 129 of the Act. Sub-section (1) thereof lays down that, `the Central Government shall constitute an Appellate Tribunal to be called the Customs, Excise and Gold (Control) Appellate Tribunal consisting of as many judicial and technical members as it thinks fit to exercise the powers and discharge the functions conferred on the Appellate Tribunal by this Act'. It is, therefore, obvious that the Appellate Tribunal CEGAT is a creature of statute and derives its jurisdiction and powers only from the statute creating it and not outside the same.
b) 1990 (49) E.L.T. 322 (S.C.) - UNION OF INDIA Versus PARAS LAMINATES (P) LTD. - There is no doubt that the Tribunal functions as a court within the limits of its jurisdiction. It has all the powers conferred expressly by the statute. Furthermore, being a judicial body, it has all those incidental and ancillary powers which are necessary to make fully effective the express grant of statutory powers. Certain powers are recognised as incidental and ancillary, not because they are inherent in the Tribunal, nor because its jurisdiction is plenary, but because it is the legislative intent that the power which is expressly granted in the assigned field of jurisdiction is efficaciously and meaningfully exercised. The powers of the Tribunal are no doubt limited. Its area of jurisdiction is clearly defined, but within the bounds of its jurisdiction, it has all the powers expressly and impliedly granted. The implied grant is, of course, limited by the express grant and, therefore, it can only be such powers as are truly incidental and ancillary for doing all such acts or employing all such means as are reasonably necessary to make the grant effective. As stated in Maxwell on Interpretation of Statutes, (eleventh edition) "where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution.(8)
C/30748-30757/2024
c) 2019 (368) E.L.T. 67 (P & H) - G.D. GOENKA WORLD INSTITUTE Versus UNION OF INDIA - There is thus a little doubt that the Tribunal which is a creation of statute is bound by the procedure of a statute.
d) 2016 (336) E.L.T. 55 (A.P.) - B. HIMA BINDU Versus COMMR. OF CUS., C. EX. & S.T., HYDERABAD-II - an appellate Tribunal, being a creature of the Statute, should be guided by the conditions stipulated in the statutory provision while exercising powers expressly conferred or those incidental thereto [M/s. Sri Chaitanya Educational Committee, Poranki, Vijayawada - 2011 (22) S.T.R. 135 (AP)].
e) 2014 (310) E.L.T. 244 (A.P.) - MAA MAHAMAYA INDUSTRIES LTD. Versus C.C.E., C. & S.T., VISAKHAPATNAM-I - the Tribunal does not have any inherent power like Civil Court to pass appropriate order for the ends of justice. The Tribunal is a creature of a Statute with specific powers mentioned in the Statute itself.
f) 2012 (276) E.L.T. 465 (A.P.) - SQL STAR INTERNATIONAL LTD. Versus COMMISSIONER OF CUS., HYDERABAD - An Appellate Tribunal, being a creature of the statute, cannot ignore the statutory guidance while exercising general powers or expressly conferred incidental powers
g) 2011 (22) S.T.R. 135 (A.P.) - COMMR. OF C. EX., GUNTUR Versus SRI CHAITANYA EDUCATIONAL COMMITTEE - An appellate Tribunal, being a creature of the statute, cannot ignore the statutory guidance while exercising general powers or expressly conferred incidental powers.
13. Learned Counsel for the appellants relied on the decision of Coordinate Bench at New Delhi Jagdish Ispat Pvt Ltd Vs Commissioner, CGST [2019 SCC OnLine CESTAT 7565]. He has further relied on Yapp India Automotive Systems Pvt Ltd Vs CCE & ST, Pune-I [MANU/CM/0145/2018], wherein, the Coordinate Bench at Mumbai has condoned the delay of 79 days and remanded the matter back to the Commissioner (Appeals) for fresh adjudication. In this case, the notice was received on 17.08.2016, during which time the concerned person to file the appeal was not present and the appeal was filed on 03.01.2017, immediately after the knowledge of the said notice. This case is also distinguishable with the facts of the present case. However, we find, in view of settled position of law, as cited supra, it is (9) C/30748-30757/2024 settled law that CESTAT, being a creature of statute, cannot go beyond the provisions of the statute under which it has been created nor it can direct any other authority working under the statute to act beyond the provisions of the statute.
14. In view of the relied upon case laws, we find that Tribunal is a creature of statute and is bound to act within the four walls of the statute. Tribunal has no discretionary power to condone the delay beyond the time limit prescribed under the Act.
15. Therefore, we find that admittedly the appellants were served the OIOs dt.13.03.2023 & 14.03.2023 on 20.03.2023 and they have filed the appeals before the Commissioner (Appeals) on 03.10.2023. In the normal course, these appeals should have been filed by 19.05.2023, which is 60 days from the date of communication of OIOs and Commissioner (Appeals) has discretion to condone the delay up to 30 days only beyond this period. In the present case, the appellants have filed the appeals before the Commissioner (Appeals) after more than 6 months from the date of communication of OIOs. Therefore, Commissioner (Appeals) was correct in dismissing the appeals on time bar itself without going into merit.
16. In view of the foregoing discussions and submissions made by both sides, we do not find any scope or reason to interfere with the Orders passed by the Commissioner (Appeals). Accordingly, we dismiss all these appeals.
17. Appeals dismissed.
(Pronounced in the Open Court on 20.01.2025) (A.K. JYOTISHI) MEMBER (TECHNICAL) (ANGAD PRASAD) MEMBER (JUDICIAL) Veda