Indian Extrusion Vs. Commissioner of Customs

Indian Extrusion vs Commissioner of Customs

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai Decided Jan 09, 2001

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Citation: sooperkanoon.com/20320
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Judge: J T J.H., G Srinivasan
Decided On: Jan 09, 2001
Subject: Miscellaneous

Case Summary

AI-generated summary - not the official court judgment text.

Miscellaneous

Key legal issue: Miscellaneous

Parties & Advocates

Appellant / Petitioner

Indian Extrusion

Respondent

Commissioner of Customs

Legal References

Reported In: (2001)(74)ECC487

Excerpt

.....held that it is the act of filing which is material irrespective of the forum before which it is filed in assessing limitation. therefore the point that it was filed before the wrong officer is not material. in the absence of show cause notice, the fact that two different letter heads were used in typing the same letter cannot become the ground for rejection especially when the assistant commissioner's order does not show that the importers were directed to comment on this observation.4. where the applications are sent by post, and where they are not traceable in the office, the dispatch itself becomes a bone of contention. in this case if the first application was sent to the wrong authority, then it is entirely likely that it cannot be available in the records of the appropriate authority. in that situation, the attendant circumstances become material. we have seen the several letters placed on record by the present appellants. in a letter dated 5.5.97 in the nature of reminder they had referred to their letter dt.6.7.89. this letter is duly receipted. along with the letter dt. 6.7.89 the certificate of posting and also the receipt of a registered cover by the postal department were exhibited. whether these could be adequate evidence to accept the fact of dispatch would have to be gone into by the concerned authority. the assistant commissioner dismissed it out of hand. the commissioner (appeals) did not apply his mind at all to the issues before him. in fact in the first sentence of his order it is stated that there were 8 orders in original whereas in fact there was only one order. his order therefore suffers from the sigma of lack of application of mind.5. we allow this appeal and remit the proceedings back to the jurisdictional commissioner (appeals). he shall cause for the case records to be called from the custom house to satisfy himself as to the validity of the importers claims. the importer will show to him to the original receipt of the post office in.....

Full Judgment

1. The appellants are importers. Certain consignments were cleared by them on payment of duty. Subsequently in pursuance of a judgment of the Bombay High Court, they filed 8 refund claims. The imports were made during January 1989 to April 1989, the duties were paid during 4.2.89 to 25.5.89, and the refund claim were lodged on 13.12.89. However, the importers claimed that they had earlier filed a consolidated refund claim vide their letter dt. 6.7.89 which was received by the Customs on 12.7.89. Whereas the individual claims were addressed to Assistant Collector of Customs (Import) Air Cargo Complex, the consolidated claim was addressed to the AC Air Port, Bombay. Much later that is in August 1999 they reminded the Custom House about pendency of their claims. No show cause notice appears to have been issued but that the importers were directed to appear before the Jurisdictional Assistant Commissioner on 23.4.99. The Assistant Commissioner rejected the claims holding that they were barred by limitation. He did not accept the plea that a consolidated claim was earlier filed well within the period of six months and that the individual claim 3 were merely extension thereof. The importers showed him the postal endorsement, which also the Ld. Assistant Commissioner did not accept. He observed that the alleged consolidated refund claim shown to him in two copies were sent on different letter heads. Against this dismissal the importers approached the Commissioner (Appeals). He observed that the appellant could not furnish adequate evidence to prove that the claims were filed within time. On his upholding the dismissal, the present appeal is before us.

2. We have heard Shri V.J. Sankaram for the appellant and Shri B.K.Choubey for the department.Shri Ambica Khandsari Udyog v.Collector of Central Excise, ruled that even if the designated authority was the Assistant Collector, the claim filed within time before the Superintendent was admissible. In effect the Tribunal has held that it is the act of filing which is material irrespective of the forum before which it is filed in assessing limitation. Therefore the point that it was filed before the wrong officer is not material. In the absence of show cause notice, the fact that two different letter heads were used in typing the same letter cannot become the ground for rejection especially when the Assistant Commissioner's order does not show that the importers were directed to comment on this observation.

4. Where the applications are sent by post, and where they are not traceable in the office, the dispatch itself becomes a bone of contention. In this case if the first application was sent to the wrong authority, then it is entirely likely that it cannot be available in the records of the appropriate authority. In that situation, the attendant circumstances become material. We have seen the several letters placed on record by the present appellants. In a letter dated 5.5.97 in the nature of reminder they had referred to their letter dt.

6.7.89. This letter is duly receipted. Along with the letter dt. 6.7.89 the certificate of posting and also the receipt of a registered cover by the postal department were exhibited. Whether these could be adequate evidence to accept the fact of dispatch would have to be gone into by the concerned authority. The Assistant Commissioner dismissed it out of hand. The Commissioner (Appeals) did not apply his mind at all to the issues before him. In fact in the first sentence of his order it is stated that there were 8 orders in original whereas in fact there was only one order. His order therefore suffers from the sigma of lack of application of mind.

5. We allow this appeal and remit the proceedings back to the Jurisdictional Commissioner (Appeals). He shall cause for the case records to be called from the Custom House to satisfy himself as to the validity of the importers claims. The importer will show to him to the original receipt of the post office in token of receipt or the letter dispatched. He will also keep in mind the Tribunal judgment cited above and then give his finding on the rejection of the refund claim.

6. The fact that the refund claims are over a decade old will be kept in mind. The Commissioner shall permit the importers to raise relevant points before him.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Mumb... Same Parties Indian Extrusion vs Commissioner of Customs Same Subject Miscellaneous Same Judge J T J.H., G Srinivasan