M/S. Sujag Fine Chemicals Pvt. Ltd vs Commissioner Of Customs(Import), ...
- CitationAppeal No. C/87362/13-MUM
Ratio decidendi
The rule this decision rests on
Where a refund order is silent on interest and the claimant's written request for interest is decided by the sanctioning authority by a separate reasoned letter, the limitation period for an appeal against the refusal of interest runs from the date of that letter, not from the date of the refund sanction order, because the cause of action for appeal arises only upon that rejection. An appellate authority that dismisses an appeal as time-barred without first ascertaining the date from which the limitation period runs, where the appeal lies against a later decision distinct from the original sanction, has committed an error of law, and the order dismissing the appeal on that ground is liable to be set aside and the matter remanded for decision on the merits.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of Order-in- Appeal No. 164/MCH/DC/Gr. IIA/2013 dtd. 5/3/3013 passed by the Commissioner of Customs(Appeals), Mumbai )
For approval and signature:
Honble Mr Ramesh Nair, Member(Judicial)
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1. Whether Press Reporters may be allowed to see : No 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 Their Lordships wish to see the fair copy : seen of the Order?
4. Whether Order is to be circulated to the Departmental: Yes authorities? =======================================================
M/s. Sujag Fine Chemicals Pvt. Ltd. : Appellant VS
Commissioner of Customs(Import), Mumbai : Respondent
Appearance
Shri. N.D George, Advocate for the Appellant Shri. M.K. Mall, Asst. Commissioner(A.R.) for the Respondent
CORAM:
Honble Mr. Ramesh Nair, Member (Judicial)
Date of hearing: 13/2/2015 Date of decision: 13/2/2015
ORDER NO.
Per : Ramesh Nair
The appeal is directed against Order-in- Appeal No. 164/MCH/DC/Gr. IIA/2013 dated 5/3/3013 passed by the Commissioner of Customs(Appeals), Mumbai wherein the appeal filed by the appellant before the Commissioner(Appeals) was dismissed as time bar on the ground that the appellant filed appeal before the Commissioner (Appeals) after the delay of 77 days from the refund order dated 18/1/2011. The fact of the case is that after sanction of the refund order dated 18/1/2011. The appellant made request to the sanctioning authority, Dy. Commissioner of Customs Appraising Gr. II B. NCH vide letter 22/3/2011 for grant of interest on the refund sanctioned. Considering the said request for interest Dy. Commissioner vide letter F. No. S/26-Misc-83/2000/IIA dated 22/6/2011 held that refund was sanctioned on 18/1/2011 from the date of filing original triplicate bill of entry i.e. on 3/11/2010 and hence the refund was granted within three months. Aggrieved with the decision of Dy. Commissioner, the appellant filed appeal before the Commissioner(Appeals) on 17/8/2011 i.e. within 60 days from the date of Dy. Commissioners letter dated 22/6/2011. The Commissioner (Appeals) rejected the appeal on the ground of time bar and contended that the appeal was filed after 77 days from the date of refund sanction order .i.e. 18/1/2011. Aggrieved by the said order the appellant is before me.
2. Shri. N.D George, Ld Counsel submits that the appeal filed before the Commissioner (Appeals) is arising out of Dy. Commissioner letter/decision dated 22/6/2011 wherein the interest was denied. It is his submission that from the date of such letter, the appeal was filed within 60 days as stipulated in the statute therefore appeal was filed well within the time and the Commissioner (Appeals) should not have rejected the appeal on time bar. Hence the appeal was not decided on merit the matter may be remanded back to the Commissioner(Appeals).
3. Shri. M.K. Mall, Ld. Asst. Commissioner(A.R.) reiterates the findings of the impugned order. He submits that the appeal filed before the Commissioner(Appeals) is arising out of refund sanction order dated 18/1/2011. The appellant filed the appeal after 77 days from the due date i.e. even beyond the condonable period and therefore the Ld. Commissioner (Appeals) rightly rejected the appeal on the ground of time bar.
4. I have considered the submissions made by both the sides and perused the record.
5. I find that in the refund sanction order, the Dy. Commissioner has not decided the issue of interest therefore the appellant raised this issue by their letter dated 22/3/2011 and considering the said letter Dy. Commissioner has given reasoned decision that no interest is attracted in the matter of refund sanctioned by him vide refund order dated 18/1/2011. In view of this fact the appeal of the appellant arises only due to the rejection of their request of interest vide letter 22/3/2011 and before that they could not have filed any appeal as regard the issue of interest. Therefore the period of filing an appeal shall be reckoned from the Dy Commissioners decision given in letter dated 22/6/2011. I am therefore of the considered view that appellant filed appeal before the Commissioner (Appeals) well within the stipulated time period. The impugned order is set aside. I therefore remand the matter to the Commissioner (Appeals) to decide the issue of interest after granting personal hearing to the appellant. The appeal is allowed by way of remand.
(Dictated in court)
Ramesh Nair Member (Judicial) sk
4
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