2024-VIL-732-CESTAT-DEL-CU
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CUSTOMS CESTAT Cases

Customs – Sections 28 and 128 of Customs Act, 1962 – Section 14 of Limitation Act, 1963 – Import of mobile phones – Refund of excess duty – Demand of erroneously sanctioned refund amount – Appellant imported mobile phones and paid Additional Duty of Customs at rate of 6% – In terms of notification dated 17-3-2012, Additional Duty was leviable at 1% on import of mobile phones – Appellant filed applications for refund of excess Additional Duty paid by it – Adjudicating authority rejected refund applications filed by Appellant – Pursuant to directions issued by Delhi High Court in Writ Petition filed by Appellant, Deputy Commissioner allowed refund claimed by Appellant – Department filed appeal before Supreme Court against judgment of Delhi High Court – Prior to decision of Supreme Court, department issued show cause notices to Appellant proposing demand of erroneously sanctioned refund amount – After decision of Supreme Court, Principal Commissioner adjudicated show cause notices and confirmed demand raised in show cause notices under Section 28 of the Act – Commissioner (Appeals) rejected appeals filed by Appellant – Whether show cause notices are adjudicated within time stipulated in Section 28(9) of the Act – HELD – Section 28(1) of the Act deals with recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded – Section 28(9) of the Act provides that proper officer shall determine amount of duty within six months from date of issuance of show cause notice under Section 28(1) of the Act – Adjudication of show cause notices would be subject to outcome of decision of Supreme Court – Department had taken adequate care to keep adjudication of show cause notices in abeyance till Supreme Court decided appeal filed by department – Section 28(9A) of the Act provides that time specified under subsection (9) of six months shall not apply from date of notice, but from date when reason ceases to exist – In present case, reason ceased to exist on 18-9-2019 when appeal filed by department against judgment of Delhi High Court was decided by Supreme Court, thus, time period has to be counted from 18-9-2019 only – In view of orders passed by Supreme Court, show cause notices could have been adjudicated upto 2-10-2021 and in present case, they were adjudicated on 24-5-2021, thus, show cause notices were adjudicated within time – Appeals dismissed - Filing of appeal – Dismissal on ground of limitation – Whether Commissioner (Appeals) is justified in dismissing appeals filed by Appellant on ground of limitation – HELD – Appellant filed appeals before Commissioner (Appeals) under Section 128(1) of the Act together with an application under Section 14 of Limitation Act for exclusion of time for re-assessment of Bills of Entry – Appellant has been denied exclusion of time under Section 14 of Limitation Act by Commissioner (Appeals) for reason that requirements contained in Section 14 of Limitation Act were not satisfied by Appellant – As per Section 128 of the Act, appeals were required to be filed within 60 days from date of communication of decision or order, and a delay of 30 days beyond this period could only be condoned – Commissioner (Appeals) had no power to condone delay beyond period stipulated in Section 128 of the Act – Total time taken by Appellant is much more than maximum period of 90 days contemplated under Section 128 of the Act – Commissioner (Appeals) committed no illegality in dismissing appeals.
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