Custom, Excise & Service Tax Tribunal
Bharat Sanchar Nigam Ltd vs Commissioner Of Customs/Imports ... on 22 September, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH
CHENNAI
Appeal Nos.C/127, 128/2006
[Arising out of Order-in-Appeal No.C.Cus.No.88 & 89/2006 dt. 31.1.2006 passed by the Commissioner of Customs, (Appeals), Chennai]
For approval and signature :
Honble Shri P.K. Das, Judicial Member
Honble Shri R. Periasami, Technical Member
1. Whether Press Reporters may be allowed to see 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 CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not ? :
3. Whether the Members wish to see the fair copy of
the order? :
4. Whether Order is to be circulated to the Departmental authorities ? :
Bharat Sanchar Nigam Ltd. Appellant
Versus
Commissioner of Customs/Imports (Seaport)
Chennai Respondent
Appearance:
Shri Raghavan Ramabadran, Advocate For the Appellant Ms. Indira Sisupal, AC (AR) For the Respondent CORAM : Honble Shri P.K. Das, Judicial Member Honble Shri R. Periasami, Technical Member Date of Hearing : 22-9-2014 Date of Decision : 22-9-2014 FINAL ORDER No.40898-40899/2014 Per R. Periasami
1. The appellant filed these appeals against the impugned order of the Commissioner (Appeals) whereby the appeals were rejected as time-barred.
2. The relevant facts of the case, in brief, are that the appellant is a Public Sector Undertaking, filed Bill of Entry No.788895 and No. 788896 both dt. 16.4.2005 declaring the value as per Highsea Sales Agreement based on tender document of October 2004. Subsequently, it was noticed that the value of the goods was wrongly declared without taking into account the actual value as per purchase order dt. 19.2.2005 resulting in excess of payment of duty. Hence the appellant filed appeals before Commissioner (Appeals) against the assessment order. The Commissioner (Appeals) held that the appellant filed appeals beyond the condonable period and therefore the appeal was rejected.
3. After hearing both sides and on perusal of the records, we find that the appellant filed Bills of Entry on 16.4.2005 which were assessed on 28.4.2005. The importer's copy of the Bill of Entry were duly printed and communicated to the appellant on 5.5.2005, out of charge order was given and the appellants paid the duty on the same day. On 3.8.2005, appellant filed appeal before the Commissioner (Appeals). According to the Commissioner (Appeals), the date of assessment of Bill of Entry dt. 28.4.2005 is the date of communication of the assessment order and therefore the appeal was filed beyond the condonable period of 30 days. But the appellant contended that out of charge order and the Bill of Entry was communicated on 5.5.2005, the date of communication of the order.
4. On a perusal of the impugned order, we find that the Commissioner (Appeals) observed that the assessment date is the critical event for the importer or his CHA so that they can clear the goods in the interest free period and file a 'protest' prior to payment of duty. So any prudent CHA would naturally try to get the assessed Bill of Entry and pay duty at the earliest. Section 128 of the Customs Act provides that any person aggrieved by any decision or order may appeal to the Commissioner (Appeals) within 60 days from the date of communication to him of such decision or order. Proviso to Section 128 states that Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, allow it to be presented within a further period of 30 days. The words "communication to him of such decision or order" in section 128 (1) of the Customs Act make it clear that the communication must be an effective communication. We find that Section 153 of the Customs Act provides service of order, decision etc. Any order or decision issued under this Act shall be served by tendering the order, decision by registered post to whom it is intended or to his agent. In this context, the Hon'ble Madras High Court in the case of Redington India Ltd. Vs CC Chennai 2007 (212) ELT 187 (Mad.) held that the petitioner's constructive knowledge about the order is not accepted when order not communicated to them in the manner prescribed in Section 153 of the Act. The relevant portion of the said decision is reproduced below :-
"8. This reason given by the authorities? can only be regarded as extraordinary reason not supported by any statutory provisions which statute requires. The service of notice has to be done in the manner as prescribed in the statutory provision. Hence, in the absence of any communication of the orders, as required in the statutory provisions, the reasoning given by the appellate authority about the knowledge that too constructive knowledge of the petitioner cannot be legally accepted. If in this electronic age, the assessment and other things are allowed to be done by computing the assessment and other things electronically and if the respondent wants to take advantage of the same, they will have to first make suitable amendment in the statutory provisions so as to avoid this sort of complication in future. Hence, the orders impugned in both the writ petitions are set aside and the appellate authority is directed to entertain the appeals and proceed further as expeditiously as possible in accordance with law."
5. The Ld. AR strongly relied upon the decision of the Tribunal in the case of Payal Petropack Pvt. Ltd. Vs CC New Delhi 2010 (251) ELT 533 (Tri.-Del.). We find that, in the said case, the Tribunal observed that even though the date of out of charge is treated as the date of assessment order, even then appeal has been filed beyond the period of 90 days. In the present case, we find that the appeal was filed within 90 days from the date of out of charge.
6. In view of our discussion above, and respectfully following the decision of the Hon'ble Madras High Court, we hold that the appeal was filed before the Commissioner (Appeals) within the condonable period. Accordingly, we set aside the impugned orders and the matter is remanded to the Commissioner (Appeals) to decide afresh the application for condonation of delay in filing of appeal. Appeals are allowed by way of remand.
(Operative part of the order pronounced
in open court on 22.9.2014)
(R. PERIASAMI) (P.K. DAS)
TECHNICAL MEMBER JUDICIAL MEMBER
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