The Chandigarh Bench of Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has set aside the dismissal of appeal filed within the stipulated period of 60 days as prescribed under Section 128 of Customs Act 1962.
The Appellant, Art N Glass had imported “Euro Grey Float Glass 3300X2140 MM 5 MM” vide Bill of Entry from China. The goods were examined by the Customs and as per Customs examination order dated 10.01.2019, the Anti Dumping Duty was leviable on impugned goods in terms of Notification No. 47/2015-ADD dated 08.09.2015, however, to satisfy the contention of the appellant, representative samples were ordered to be drawn for getting the same tested for seeking report as to whether the sample was processed glass meant for decorative/industrial/automotive purposes or not.
Accordingly, the sample report was in favour of the appellant i.e. the sample was “processed glass meant for decorative/industrial/automotive purposes”.
Thereafter, the appellant vide letter dated 19.12.19, requested the department to re-assess the Bill of Entry dated 26.12.18 on the basis of test sample report of CSIR Kolkata dated 11.09.2019. The appellant also filed the present appeals on 20.03.2020.The Commissioner (Appeals) after considering the submissions of the party held that the present appeal was time barred because the same had been filed after the expiry of 60 days which was prescribed under Section 128 of the Customs Act, 1962 for filing appeal before the Commissioner (Appeals).
Parminderjit Singh, on behalf of the appellant submitted that the impugned order was not sustainable in law as the same had been passed without properly appreciating the facts and the law. He further submitted that the appellant filed the present appeal before the Commissioner (Appeals) on 20.03.2020 only after receiving the order of the Assistant Commissioner on 31.01.2020.
He further submitted that the appellant got the copy of the order on 31.01.2020 and filed appeal before the Commissioner (Appeals) on 20.03.2020 which was within the stipulated period of 60 days from the receipt of such order but the Commissioner (Appeals) had wrongly counted the period from the date of report of the CSIR dated 11.09.2019
He also submitted that the time limitation as prescribed under Section 128 of the Customs Act, 1962 was not applicable in the instant case as this was a case of amount collected without authority of law which was against the tenets of Article 265 of the Constitution of India.
Ravinder Jangu, on behalf of the revenue reiterated the findings in the impugned order.
A Single Bench of S. S. Garg, Member (Judicial) noted that the appellant imported “Euro Grey Float Glass 3300X2140 MM 5 MM” from China dated 26.12.2018 for home consumption. But the department was of the view that the goods attract Anti-Dumping Duty and directed the appellant to deposit the Anti-Dumping Duty and thereafter, sent the sample for analysis and after the Report of the Laboratory came, it was found that the impugned goods did not attract Anti-Dumping Duty.
The Bench further set aside the impugned order and remanded back to the CIT(A) for deciding the case on merit holding that the appeal before the Commissioner (Appeals) was very much well within the period of limitation and the dismissal of the appeal as time barred by the Commissioner was not sustainable in law.
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