Customs, Excise and Gold Tribunal - Mumbai
Triumph Nuclear Medicine And Research ... vs C.C. on 2 February, 2007
Equivalent citations: 2008(223)ELT74(TRI-MUMBAI)
ORDER Archana Wadhwa, Member (J)
1. Applications is for condonation of delay of around 5 years (two months less) in filing appeal No. C/3342/06. The impugned order was passed by Commissioner on 27-2-02, vide which he confiscated the various hospital equipments imported by the appellant on the adjudication of violation of conditions of exemption Notification No. 64/88-Cus dt. 1-3-1988. However, an option was given to the applicant appellant to redeem the goods on payment of redemption fine of Rs. 1.50 lakhs. In addition, Commissioner vide his impugned order also confirmed duty of Rs. 58,94,913/- and imposed personal penalty of Rs. 25,000/- on the applicant. The said order was not appealed against by the appellant till December 2006.
2. The appellant's contention, duly presented through their Advocate Shri Anil Balani is that the said confiscated goods were not redeemed by them and as such they were under the bona fide belief that confirmed demand of duty is also not required to be paid by them, it was in these circumstances that they deposited the penalty amount of Rs. 25,000/- and did not file any appeal against the said order. However, it was subsequently when Assistant Commissioner of Customs approached the appellant for recovery of the said demand of duty, in view of Hon'ble Bombay High Court's decision laying down that even if the confiscated goods are not redeemed, assessee is liable to pay duty, that they realized their mistake and filed an appeal before Tribunal in December 2006. Shri Anil Balani submits that during the relevant period, various Tribunal decisions were to the effect that in case the confiscated goods are not redeemed by the assessee, demand of duty cannot be confirmed against them. As such, they were under a bona fide belief that no duty is required to be paid by them, inasmuch as, they had opted not to redeem the goods. The law on this issue was reversed by the Hon'ble Bombay High Court decision in the case of Commissioner of Customs (IMP), ACC, Sahar v. Wockhardt Hospital & Heart Inst. . It is only thereafter, they challenged the said order and the delay, in these circumstances, should be condoned.
3. Countering the above arguments Ld. DR Shri R.B. Pardeshi submits that the impugned order was passed in the year 2002, confirming the demand of duty against the appellant. If the appellant was aggrieved with the same, they should have filed an appeal before the Tribunal well within the limitation period. Having allowed the limitation period to expire, the said order had attained finality and any subsequent decision which may have effect on the recovery of duty, will not come to the applicants rescue, inasmuch as, the order having attained finality, is to be effected accordingly. In any case, even according to the subsequent judgment of Bombay High Court, appellants are required to pay duty. As such, there is no justifiable reason for condoning the delay.
4. After appreciating the submissions made by both the sides, we find that Commissioner vide his impugned order has clearly confirmed the demand of duty against the appellant. The payment of the same has nowhere been held by the Commissioner to be dependent upon the appellants exercising their option to redeem the goods. Preamble to the said order clearly stated that if the appellant is aggrieved with the said order, the appeal has to be filed there against before Tribunal. The normal period to prefer an appeal is three months from the date of receipt of the impugned order. Admittedly, the appeal has not been filed within the said period, but after a gap of around 4 1/2 years. By not challenging the order, the appellant have allowed the said order to attain finality. The appellants contention that they were under a bona fide belief that said duty is not required to be deposited by them as they were not redeeming the confiscated goods, cannot be accepted at this stage. The appellant on their own interpreted the law and gathered the impression to that effect. Even if the said impression entertained by the appellant was correct and in accordance with law declared by the various decisions, as contended by the appellant, the same requires challenging the confirmation and setting aside of the impugned order by higher appellate forum. It is not open to an assessee to himself adjudge the correctness of the order and not to challenge the same by treating the order as incorrect or invalid. Even an incorrect order requires setting aside of the same by the higher appellate forum. As such, even if the appellant was under a bona fide belief that the impugned order is not correct, he was required to file an appeal their against and get the same set aside by the higher appellate authority. Instead of doing so they had chosen not to challenge the same, and in the process, allowed the order to attain finality.
5. Subsequent filing of appeal against the said order after a period of 4 1/2 years on the ground that in view of Bombay High Court order, they are legally liable to pay duty, in our views, is not in accordance with the principles of judicial discipline. If the appellants are allowed to challenge the orders after such long gaps, without any justifiable reasons and merely on the ground, that subsequent interpretation of law declared by a courts of law is against them, there would not be any finality to the judicial proceedings. There are number of decisions in the context of refund and unjust enrichment laying down that where refund proceedings had attained finality, subsequent amendment to the provisions of Sections 11B invoking unjust enrichment angle, will not hit the earlier final refund proceedings. If the parties to such orders are allowed to file appeals after the declaration of law by the higher authorities, Revenue would file appeals even after a gap of, theoretically speaking, 20 years or more, which on the face of it, cannot be allowed. It is precisely on account of the fact that legal proceedings cannot be allowed to be in a fluid state, unless the proceedings are kept alive by way of finding appeals against the impugned orders.
6. In view of our foregoing discussions, we do not find any justification for condoning the delay of 4 1/2 years in filing the present appeal.
7. It is further seen that when the Revenue approached the appellant for recovery of the confirmed demand of duty, they took a stand that the duty was not calculated properly. They submitted that the benefit of notification has not been given to them and it is the tariff rate, which has been applied and duty calculated. According to them duty element come down to Rs. 29.59 lakhs approximately. The said plea of the appellant was responded to by the Assistant Commissioner vide his letter dt. 21-8-06 intimating the appellant that the duty was correctly quantified. However, the appellant vide their letter dt. 24-8-06 again contended that the benefit of exemption notification No. 65/88-Cus. has not been extended to them and the benefit of Notification No. 24/91-Cus. in respect of additional duty has not been considered. The said letter was replied by the Assistant Commissioner vide his letter dt. 26-9-06 intimating the appellant that inasmuch as they have forfeited their right to appeal before CESTAT, they have to make full payment. The said letter is impugned in the second appeal No. C/3343/06.
8. The appellant's contention is that in terms of the provisions of Section 154 of the Customs Act, the Commissioner was within his jurisdiction to correct clerical or arithmetical mistake. As such, it is their contention that even if the appeal was not filed against the earlier order, their application under Section 154 should have been considered favourably.
9. For better appreciation we reproduce the said section:
Correction of clerical errors, etc. Clerical or arithmetical mistakes in any decision or order passed by the Central Government, the Board or any officer of customs under this Act, or errors arising therein from any accidental slip or omission may, at any time, be corrected by the Central Government, the Board or such officer of customs or the successor in office of such officer, as the case may be.
As is clear from the above, the said Section empowers the adjudicating authority to undo the clerical of arithmetical mistake or errors arising from any accidental slip or omission. The extension of benefit of any exemption notification requires judicial application of mind and a decision thereon, based upon number of factors. Most of the disputes related to applicability or otherwise of the exemption notification. As such it cannot be held to be a clerical or arithmetical error involving any undisputed facts. The applicability of notification requires judicial deliberation by the adjudicating authority. The appellant's said claim having neither been put forward before the Commissioner at the time of adjudication nor the appellant having filed any appeal against the said order of Commissioner, recourse to the provisions of Section 154 cannot be opted, which in any case allow only arithmetical errors to be rectified.
10. Shri Anil Balani has placed reliance decision of the Hon'ble Supreme Court in the case of Anchor Pressings (P) Ltd. laying down that relief not claimed during assessment proceedings by an as-sessee, Assessing Officer is under obligation to grant statutory relief even if not claimed by assessee. However, we find that as recorded in para 2 of the said judgment there was an appeal by the assessee against the assessment order. However, in the present case there is no appeal against the order of the Commissioner. If the appellant would have challenged the earlier order of Commissioner they were admittedly at liberty to raise the ground of their claim to exemption notification.
11. In as much as, second appeal is only an extended limit of the first appeal and having held that the earlier order had become final and the delay being considerably long, does not call for condonation, we dismiss stay petition as also both the appeals. COD application also gets disposed of.
(Pronounced in court)