M/S. General Traders (Chennai) Pvt. Ltd vs Commissioner Of Customs, Chennai
- CitationAppeal No.C.Cus.II No.55/2014, dated 31.10.2014 passed by the Commissioner of Customs (
Ratio decidendi
The rule this decision rests on
Delay in filing an appeal may be condoned where the cause of delay is shown to be reasonable and bona fide; the length of the delay is not by itself decisive, and a party is unlikely to deliberately cause prejudice to itself. An appellate authority that disposes of a refund claim by a bald order, without examining the material on which the adjudicating authority allowed it, shows non-application of mind and cannot sustain the denial of relief. A Chartered Accountant's certificate is not, by itself, conclusive evidence of the matters it certifies, but where the adjudicating authority has independently verified the underlying documents (bills of entry, duty payments, sale invoices and challans evidencing payment of sales tax to the State), and there is no contrary evidence, the claimant's conduct cannot be doubted and the refund may be upheld. Where the record already permits a decision on the facts, remanding the matter to the appellate authority serves no useful purpose, and the appellate tribunal may decide the appeal itself.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No.C.Cus.II No.55/2014, dated 31.10.2014 passed by the Commissioner of Customs (Appeals-II), Chennai]
M/s. GENERAL TRADERS (CHENNAI) PVT. LTD. APPELLANT
Versus
COMMISSIONER OF CUSTOMS, CHENNAI RESPONDENT
Appearance:
For the Appellant Shri S. Krishnanandh, Adv.
For the Respondent Shri K.P. Muralidharan, AC (AR)
CORAM:
Honble Shri D.N. Panda, Judicial Member
Date of hearing/decision 29-09-2015
FINAL ORDER NO. 41312 / 2015
Appellant succeeded before the Adjudicating authority in terms of order dated 12.12.2012 directing refund of Special Additional Duty of Customs on the basis of intensive examination of the material available. This is vividly clear from page 2 of the Adjudication order [page 19 of appeal folder]. When appellant succeeded before Adjudicating authority. Revenue went in appeal to learned Commissioner (Appeals). That authority by his cryptic order without examining veracity of the claim and the details tested by the Adjudicating authority simply passed a bald order stating that the appellant is not entitled to relief totally. Revenue succeeded thereby partly. To the extent assessee failed before learned Commissioner (Appeals) due to denial of relief by that authority appeal is made against the same in the present appeal. It took little time to take decision for filing the appeal. In the meantime, the Managing Director of the appellant was pre-occupied in setting up a school for advancement of education. Appellants approach to the Tribunal without any deliberate delay. Even though, the appeal is delayed, its merits shall be buried if delay is not condoned. Therefore prayer was made to condone the delay and allow the appeal reversing the order of Commissioner (Appeals).
3. Revenue supports the order of the appellate authority and opposes prayer for condonation of delay. .
4. Heard both sides and perused the records.
5. So far as the prayer for condonation of delay is concerned, averments of the learned counsel appears to be reasonable for the reason that no one would prefer to cause prejudice to himself. So also length of delay is irrelevant while cause of delay is relevant for consideration of application for condonation of delay. Therefore, following the ratio laid down by the Supreme Court in the case of (i) Collector, Land Acquisition Anantnag & Anr. Vs Mst. Katiji & Ors. reported in 1987 (28) E.L.T.185 (S.C.) and in the case of (ii) N. Balakrishnan Vs M. Krishnamurthy reported in 2008 (228) E.L.T.162 (S.C.) the application for condonation of delay of 120 days is allowed and MA (COD) is disposed.
6. So far as merits of the appeal is concerned, the manner in which the appellate authority has examined the issue, that shows his non-application of mind. According to him, the Chartered Accountants certificate was the basis for grant of refund. But that certificate ipso facto is not conclusive evidence as has been held by Honble High Court of Madras in the case of Commissioner of Customs (Exports), Chennai Vs BPL Ltd. 2010 (259) E.L.T. 526 (Mad.). However, learned Adjudicating authority has examined the bill of entry, duty paid on export and had correlated the import with the invoices showing sales. He had also examined details of sales tax paid through the challans. It is clear that there was an extensive examination done by that authority. No doubt, he has also considered the Chartered Accountants certificate apart from the basic evidence of suffering of sales tax on sale of the imported goods when sold domestically. In the absence of any contrary evidence, when what that was realized towards sales tax on sale by the appellant has gone to the State treasury, appellants conduct cannot be doubted. Adjudicating authority find that the sales tax realized are supported by Chartered Accountants certificate and corroborated by the challan showing the deposit thereof.
7. On the facts and circumstances stated above, sending the matter back to the appellate authority shall serve no useful purpose. Therefore, appeal is allowed.
(Dictated and pronounced in open court)
(D.N. PANDA) JUDICIAL MEMBER
ksr 03-10-2015
DRAFT Remarks
I II III
Date of dictation 28.09.2015
Draft Order - Date of typing 28.09.2015
Fair Order Typing 03.10.2015
Date of number and date of dispatch 07/10/2015
3 C/COD/40513/2015 and C/41238/2015
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