Custom, Excise & Service Tax Tribunal
M/S. Eion Telecom Pvt Ltd vs Commissioner Of Customs And Service Tax ... on 26 December, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: C/20489/2016-SM [Arising out of Order-in-Appeal No. 24/2016 dated 14/01/2016 passed by Commissioner of CUSTOMS (Appeals), BANGALORE ] M/s. Eion Telecom Pvt Ltd Ergotek Building Plot No. 120, P Sy No. 152, 3rd Floor, EPIP Layout, Whitefield, BANGALORE - 560066 KARNATAKA Appellant(s) Versus Commissioner of Customs and Service Tax Bangalore-cus C.R. BUILDING, QUEENS ROAD, P.B.NO. 5400, BANGALORE, - 560001 KARNATAKA Respondent(s)
Appearance:
Mr. M.SRINIVASAN, Consultant 11, 1ST FLOOR, 2ND MAIN CKC GARDEN BANGALORE - 560027 KARNATAKA For the Appellant Mr. N. Jagadish, AR For the Respondent Date of Hearing: 26/12/2016 Date of Decision: 26/12/2016 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No. 21517 / 2016 Per : S.S GARG The present appeal is directed against the impugned order dated 14.1.2016 passed by the Commissioner (A) wherein the Commissioner (A) has dismissed the appeal of the appellant at the threshold being not maintainable as the same was filed beyond the period of limitation as prescribed under Section 128(1) of Customs Act, 1962.
2. Briefly the facts of the case are that the appellant imported trans receiver modem falling under chapter heading 8517 6230 of the Customs Tariff Act, 1975 and have filed a refund claim for an amount of Rs.2,90,250/- on 5.7.2013 under the provisions of Notification No.102/2007-Cus. dated 14.9.2007 read with Boards Circular No.6/2008 dated 28.4.2008 and 16/2008 dated 13.10.2008. The appellant claimed refund of additional duty of customs paid by them for the month of July 2012 through TR-6 challans in respect of Bill of Entry No.7241751. The original authority after due process rejected the refund being hit by time bar. Aggrieved by the said order, the appellant filed the appeal before the Commissioner (A) and the Commissioner (A) also dismissed the appeal at the threshold being time barred as the appeal was filed beyond the period of limitation as prescribed under Section 128 of the Customs Act, 1962. Hence the present appeal.
3. Heard both the parties and perused the records.
4. Learned counsel for the appellant submitted that the impugned order dismissing the appeal of the appellant being not maintainable is wrong and illegal. He further admitted that appeal was filed beyond the period prescribed under Section 128 but the reason for filing the appeal after the expiry of limitation was that the concerned Director was not well. He further submitted that the learned Commissioner (A) should have condoned the delay in filing the appeal and should have decided the matter on merit.
5. On the other hand, the learned AR defended the order of the learned Commissioner (A) by submitting that the Commissioner (A) has the power to condone the delay up to 30 days after the due date for filing the appeal i.e., upto 90 days from the due date of filing of appeal. Whereas in the present case, admittedly there has been a delay of 105 days from the date of receipt of Order-in-Original in filing the appeal, which is beyond 90 days and the Commissioner (A) has rightly dismissed the appeal as condoning the delay beyond 30 days is not within his power.
6. After considering the submissions of both the parties and perusal of the material on record, I find that there is no infirmity in the impugned order because as per Section 128, the appeal before the Commissioner (A) has to be filed within 60 days from the date of communication of the order and in this case admittedly order was received on 14.7.2015. Here it is relevant to reproduce Section 128 of the Customs Act, which is as under:
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 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.
6.1 Further, I find that the learned Commissioner (A) while dismissing the appeal of the appellant has relied upon the judgment of the Honble Supreme Court in the case of Singh Enterprises vs. CCE, Jamshedpur reported in 2008 (221) ELT 163 (SC) wherein the Honble Supreme Court has held that, the proviso to sub-section(1) of Section 35 ibid 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 the delay only upto 30 days after the expiry of 60 days which is the normal period of preferring appeal.
7. Therefore, in view of the judgment of the Honble Supreme Court cited supra, I do not find any infirmity in the impugned order and I uphold the same by dismissing the appeal of the appellant.
(Operative portion of the Order was pronounced in Open Court on 26/12/2016.) S.S GARG JUDICIAL MEMBER rv 5