Custom, Excise & Service Tax Tribunal
Commissioner Of Customs, Nhava Sheva vs Panasonic Battery India Co Ltd on 29 March, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Application No. C/S/2005/09 and Appeal No. C/1282/09 (Arising out of Order-in-Appeal No. 490 (Gr. VB)/2009/JNCH/IMP-122 dated 29.9.2009 passed by Commissioner of Customs (Appeals), Mumbai II.) For approval and signature: Honble Mr.P.G. Chacko Member (Judicial) ======================================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== Commissioner of Customs, Nhava Sheva Appellant Vs Panasonic Battery India Co Ltd Respondent Appearance:
Dr T. Tiju, SDR, for Appellant Shri G.S. Dave, Assistant Manager, for Respondent CORAM:
Honble Mr.P.G. Chacko Member (Judicial) Date of Hearing: 29.03.2010 Date of Decision: 29.03.2010 O R D E R NO..
1. In this application filed by the Revenue (appellant), the prayer is to stay the operation of the impugned order, wherein the learned Commissioner of Customs (Appeals) condoned the heavy delay involved in the filing of appeal by the assessee against the order of assessment. The assessing authority had assessed Bill of Entry No 784348 dated 11.4.08 by accepting the value declared by the importer. Against the order of assessment, the assessee preferred an appeal to the Commissioner (Appeals) belatedly. The delay involved in that appeal was to the extent of 12 months and 29 days. The Commissioner (Appeals) took the view that as the appellant (assessee) had raised a law point, the delay of the appeal could be condoned. Accordingly, the delay was condoned and the assessees appeal was allowed. The appellate authority held that necessary amendments could be made in the Bill of Entry on the basis of evidence. The present appeal of the Revenue is directed against the Appellate Commissioners order, mainly on the ground that the Commissioner (Appeals) had no jurisdiction to condone any delay of appeal beyond the condonable period of delay under the proviso to Section 128 (1) of the Customs Act.
2. In support of this ground of the appeal, the learned SDR has cited Singh Enterprises vs Commissioner 2008 (221) ELT 163 (SC), wherein the apex court held that the Commissioner (Appeals) was empowered to condone delay of 30 days only and that Section 5 of the Limitation Act, 1963 was not applicable to appeals filed with the Commissioner (Appeals). The learned SDR has, therefore, prayed for setting aside the impugned order of the Commissioner (Appeals).
3. The authorized representative of the respondent-company reiterates the cross objections filed today by the respondent. The so-called cross objections, wherein the respondent prays for rejecting the departments appeal, can be considered only as counter to the departments appeal. The documents annexed to these cross objections include a copy of the Invoice No. DM-PTM 7001 dated 25.3.2008, a copy of Bill of Lading No. FIT 4633 dated 21./3.2008 and a copy of the subject Bill of Entry No 784348 dated 11.4.08. The respondents representative has invoked Sections 149 and 154 of the Customs Act for reassessment of the Bill of Entry. It is submitted that, in letters dated 4.8.09 and 3.11.09, they had requested for such reassessment.
4. I have given careful consideration to the submissions. It is settled law that the Commissioner (Appeals) has no power to condone delay of appeal beyond the condonable period of 30 days under Section 128 of the Customs Act as well as Section 35 of the Central Excise Act. With reference to Section35 of the Central Excise Act, the Honble Supreme Court so held in the case of Singh Enterprises vs Commissioner. Admittedly, the provisions of Section 128 of the Customs Act is pari materia with those of Section 35 of the Central Excise Act. Therefore, the decision of the lower appellate authority to condone, under Section 128 of the Customs Act, the heavy delay of 12 months and 29 days involved in the filing of appeal by the assessee against the assessment order is beyond its jurisdiction, as rightly submitted by the learned SDR. The lower appellate authority held that, where a law point was raised by the appellant, such delay could be condoned. This view is not supported by the express provisions of Section 128 of the Customs Act. Had it been the legislative intent, an appropriate exception would have been carved out of the proviso to Section 128 (1) of the Act and a provision would have been made to enable the appropriate authority to condone any delay beyond 30 days in cases involving any law point. Therefore, the view taken by the Commissioner (Appeals)_ is untenable. Accordingly, the stay application filed by the department is allowed.
5. As it appears from the records, the assessee had requested for a reassessment of the Bill of Entry. They submitted that there were clerical errors in the Bill of Entry which required to be corrected in terms of Section 154 read with Section 149 of the Customs Act. This was the request to the assessing authority. As rightly submitted by the learned SDR, Section 154 is not available for this purpose inasmuch as, under that provision, the Central Government, the Board or any officer of Customs is authorized to correct any clerical or arithmetical mistake or any error arising from any accidental slip or omission. The mistake in the present case, if any, was not on the part of the assessing authority (Assistant Commissioner of Customs) but on the part of the assessee. The assessing authority accepted the declared value and assessed the goods to duty of Customs. It was the assessee who might have made mistakes while presenting Bill of Entry. Section 154 does not authorize correction of such mistakes. If it was the assessees case that they made erroneous entries in the Bill of Entry, it was upto them to seek amendment of the Bill of Entry before the assessing authority on the basis of documentary evidence which was in existence at the time of clearance of the goods. It appears, no action was taken by them in this regard under Section 149 of the Act. A case involving the interplay of Section 149 (which provides for amendment of Bills of Entry on the basis of documentary evidence in existence at the time of clearance of goods) and Section 17 (which provides for reassessment) was considered by this Tribunal in I.P. Rings Ltd vs Commissioner 2006 (202) ELT 61 (Tri-Chennai). The decision in I.P. Rings Ltds case has been consistently followed by this Tribunal. It is upto the assessing authority to take appropriate steps in terms of the Tribunals decision in I.P. Rings Ltds case, if it is approached by the assessee with a proper application under Section 149 of the Act. With these observations, the appeal of the Revenue is allowed.
(Dictated in Court.) (P.G. Chacko) Member (Judicial) rk 2