Custom, Excise & Service Tax Tribunal
Hyundai Construction Equipment India ... vs Cc Sea Ch - Iv on 26 November, 2024
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL, CHENNAI
Customs Appeal No.41375 of 2015
(Arising out of Order in Appeal C. Cus. II No. 363/2014 dated 24.12.2014 passed by
the Commissioner of Customs (Appeals - II), Chennai)
Hyundai Construction Equipment
India Pvt. Ltd. Appellant
Plot No. A/2, MIDC Chakan Phase 2
Village - Khalumbre, Taluka - Khed
Pune, Maharashtra - 410 501.
Vs.
Commissioner of Customs Respondent
Chennai IV Commissionerate Custom House, 60, Rajaji Salai Chennai - 600 001.
APPEARANCE:
Shri N. Viswanathan, Advocate for the Appellant Shri N. Satyanarayanan, Authorized Representative for the Respondent CORAM Hon'ble Shri M. Ajit Kumar, Member (Technical) FINAL ORDER NO. 41503/2024 Date of Hearing : 17.10.2024 Date of Decision: 26.11.2024 This appeal is filed by the appellant against Order in Appeal C. Cus. II No. 363/2014 dated 24.12.2014 passed by the Commissioner of Customs (Appeals - II), Chennai (impugned order).
2. Brief facts of the case are that the appellant imported construction equipment for sale and paid all the duties of customs including 4% SAD amounting to Rs.58,95,069/- and subsequently sold the imported goods and paid VAT / ST as applicable. The appellant filed refund claim for refund of 4% SAD paid on the imported goods under 48 bills of entry. The refund sanctioning authority after due process of law allowed refund to the tune of Rs.53,72,908/- and rejected refund 2 C/41375/2015 for three bills holding that two Bills of Entry No. 280556 and 280554 both dated 7.8.2009 were time-barred and one Bill of Entry No. 470761 dated 31.3.2010 was rejected as the duplicate copy of Bill of Entry and original copy of TR6 challan were not submitted. Aggrieved by the partial rejection of refund amount of Rs.5,22,152/-, the appellant preferred an appeal before the learned Commissioner (Appeals). The appellate Commissioner without going into the merits of the case observed that the appeal was filed beyond the statutory period and hence rejected the appeal on time-bar. Hence the present appeal.
3. Shri N. Viswanathan, learned Advocate appeared for the appellant and Shri N. Satyanarayanan, learned Authorized Representative appeared for the respondent.
3.1 The learned Advocate submitted that the appellant filed a claim for Rs. 58, 95, 069/- covering the period between October 2009 to May 2010 and the Ld. Original Authority passed an unsigned order no. 14284/2011 dated 25/01/2011. As the copy of the order was provided to them only during January 2012, they filed the statutory appeal against the unsigned order on 16/02/2012 and accepted by the office of the learned 1st appellate authority. The 1st appellate authority vide letter dated 09/05/2012 asked them to produce the original signed copy of the order impugned. Not receiving any response from them he seems to have obtained the same from the department. It was noticed that OIO was signed only on 30/11/2011 by the Ld. Original Authority. Inspite of obtaining the said information showing that the order of the original authority was signed only on 30/11/2011 the 1st Appellate authority granted them a hearing and recorded that on 05/12/2014 when their counsel appeared for the hearing he did not produce the proof for the date of receipt of the order. He then dismissed the appeal 3 C/41375/2015 on the grounds of time bar holding that the delay involved is 327 days and observing that it falls beyond his condonation powers by computing the period of delay from the date of the order i.e. 25/01/2011 even while admitting that the order itself was signed only on 30/11/2011 by the Ld. Original Authority. He did not take into consideration that unless the order is signed it is not valid in law. Hence this appeal. The Ld. Counsel submits that even if it were to be assumed that the order was served on them on the date on which it was admittedly signed then the two months period to file the appeal expires on 29/01/2012 whereas they admittedly filed the appeal on 16/02/2012 involving a delay of 18 days which was very much within the condonable period as provided under the proviso to Sec. 128 of the customs Act rendering the computation of the period of delay at 327 days by the lower appellate authority totally wrong and erroneous. He has prayed for the setting aside of this order and remanding back to the concerning authority for deciding the merit of their claim for the balance amount after granting them a person hearing and render justice.
3.2 The Ld. AR has reiterated the points made in the impugned order.
4. Heard the Ld. Counsel for the appellant and the Ld. AR for revenue representing the contesting parties. I have also perused the Appeal Papers, and the judgments cited. I find that the issue relates to the appeal before the First Appellate Authority being dismissed as time barred. From the facts of the case it is seen that the appellant received OIO 14284/2011 dated 25.01/2011 which was unsigned. An un-signed document looses its efficacy. The Hon'ble Andhra Pradesh High Court in SRK Enterprises Vs Assistant Commissioner (ST) [Writ Petition No. 29397 of 2023, Dated: 10/11/2023], held that an unsigned order 4 C/41375/2015 cannot be covered under ― any provision of law dealing with mistake, defect or omission therein, hence affecting the validity of the order and set aside the same with direction to the Competent Authority to pass fresh order in accordance with law.
5. In the present case I find that a signed order was subsequently issued on 30/11/2011 whereas the appeal was filed on 16/02/2012 involving a delay of 18 days which is within the condonable period as per proviso to Sec. 128 of the Customs Act, 1962. Considering the peculiar facts of the case, I feel that the ends of justice would be served by remanding the matter back to the file of the Ld. Commissioner Appeals to be decided afresh on merits.
6. The appeal is hence allowed by way of remand to the Ld. Commissioner Appeals, Custom House, Chennai, for a decision on merits and is disposed of accordingly.
(Order pronounced in open court on 26.11.2024) (M. AJIT KUMAR) Member (Technical) Rex