Custom, Excise & Service Tax Tribunal
M/S Sayani & Sons vs Commissioner Of Customs (General), ... on 29 October, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. C/86156/15 (Arising out of Order-in-Original No. 27/CAC/CC (G)/SRP/CBS/(Admn) dated 18.05.2015 passed by the Commissioner of Customs (General), Mumbai.) For approval and signature: Honble Shri S.S. Garg, Member (Judicial) Hon'ble Shri Raju, Member (Technical) =====================================================
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? ===================================================== M/s Sayani & Sons Appellant Vs. Commissioner of Customs (General), Mumbai Respondent Appearance: Shri J.C. Patel, Advocate for Appellant Shri Chatru Singh, Asst. Commr. (A.R.) for Respondent CORAM: HONBLE SHRI S.S. GARG, MEMBER (JUDICIAL) SHRI RAJU, MEMBER (TECHNICAL) Date of Hearing: 29.10.2015 Date of Decision: .2015 ORDER NO. Per: Raju:
The appellants were licenced under Customs House Agent Licencing Regulations as an agent. In respect of a consignment imported by Kulkarni Impex the role of the appellants was examined and after due process the licence was cancelled. The appellants contested it on various grounds, however, the ground of limitation was not one of those. The appellants challenged the said order of cancellation of licence before the Tribunal. The ground of limitation was not raised as a ground of appeal in the appeal memo. The learned Counsel of the appellants raised the ground of limitation for the first time during the arguments at hearing stage.
2. In the written submissions after the hearing the learned Counsel has cited the follows decisions in support of his assertion that limitation being a question of law can be permitted to be raised. He submitted that Hon'ble Bombay High Court in the case of Jam Shri Ranjit Singhji Spg and Wvg Mills Co. Ltd. Vs. UOI 1991 (52) ELT 365 (BOM) in which in para 2 the High Court held as follows:
Shri Shah submitted that the petitioners desire to raise one more contention to urge that the Assistant Collector had no jurisdiction to pass order on three show-cause notice issued under Rule 10 of the Central Excise Rules. Shri Shah very fairly stated that this issue was not raised before the two authorities below or in the petition, but submitted that as question is one of pure law the petitioners should be permitted to raise it for the first time for hearing. We granted permission. (emphasis supplied) 2.1 Reliance was also placed on the decision of the Tribunal in the case of Nylex Traders Vs. CC (P)-2011 (274) ELT 71 in which in para 6 the Tribunal as held as follows:
In the instant case, it is true that the appellants namely M/s Nylex Traders and Shri C.D. Shah had not raised any jurisdictional objection in their replies to the show-cause notice. They had not raised any such objection before the adjudicating authority at any other stage. As per the judgment of the Hon'ble Supreme Court in Sarjoo Prasad Ram Kumars case (supra), they can be allowed to raise the jurisdictional objection in their appeals before the Tribunal. In other words, the dictum An objection as to jurisdiction goes to the root of the case operates in favour of the said parties.
(emphasis supplied).
2.2 Reliance was placed on the decision of the Hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. Vs. CIT- 1998 (99) ELT 200 (SC) in which it is held that the Tribunal has jurisdiction to examine a question of law even though the same was not raised before the lower authority or in appeal memorandum but was sought to be added later as an additional ground by a separate letter. Copy of the said decision is enclosed.
2.3 Further, it was asserted that it is a settled law as laid down in the following judgments that a plea of limitation being a legal plea can be taken for the first time in appeal:
Kusum Ingots & Alloys Vs. CCE-2001 (137) ELT 550 Eagle Flask Industries Ltd. Vs. CCE -2007 (220) ELT 173 National Organic Chemical Industries Ltd. Vs. CC. -2000 (126) ELT 1072
3. Learned A.R. relies on the impugned order. He asserted that the limitation is not a pure question of law but also of facts. It can not be raised without notice and without filing a miscellaneous application for inclusion of additional grounds.
4. We have gone through the rival submissions. It is seen that the question of limitation has neither been raised during original proceeding before adjudicating authority nor has it been incorporated as a ground of appeal in the appeal memo nor has it been sought to be included by miscellaneous application for inclusion of fresh grounds. In these circumstances and the case law cited above, while we can not ignore the submissions on limitation, we can not also give findings without giving Revenue an opportunity to give findings on the same. We are left with no option but to set aside the order and remand the matter to the original adjudicating authority to give findings on the issue of limitation. The appellants will approach the adjudicating authority within three weeks of issue of this order with their submissions. The Commissioner will decide the matter within three months of issue of this order after giving a fair opportunity to appellants to present their case.
(Pronounced in Court on 2015) (S.S. Garg) (Raju) Member (Judicial) Member (Technical) Sp 4 APPEAL NO. C/86156/15-Mum