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Judgment
The appellant is in appeal against dismissal of their appeal by the Commissioner (Appeals) on the ground of limitation.
Brief facts are that the appellant who is registered with the Department and are engaged in manufacture and export had deposited excess cost
recovery charges (at instance of Department) during the period 1999 to 2004. In view of the instructions of Board vide letter No. A/11018/8/91.Ad.-
IV dated 01.04.1991, it appeared to appellant that they have been subjected to excess cost recovery charges and are entitled to refund. Appellant was
also allowed sharing of cost recovery charges by the jurisdictional Commissioner vide Order No. C. No. V(16) MISP/19/2000 dated 21.12.2000 for
the financial year 2000-01 and onwards. The appellant filed a refund application for Rs.1,59,710/- on 05.05.2005 before the Assistant Commissioner.
The Assistant Commissioner vide Order-in-original dated 05.10.2005 determined the amount refundable at Rs.1,11,370.33 and adjusted the said refund
amount against cost recovery charges of Rs.1,00,861/- for the year 2004-05, although there was no amount due towards cost recovery charges for the
year 2004-05, as the appellant had opted for MOT charges and had paid the same for the said year as per Board Circular No. M.S.(DR)36/2004-Cus.
dated 24.05.2004. The appellant had requested for a speaking order which was declined on the ground that adjustment of cost recovery charges is
administrative in nature.
Against the said order dated 05.10.2005 appellant filed appeal before the Commissioner (Appeals) claiming refund of Rs.1,59,710/- which was
allowed vide order-in-appeal dated 24.04.2006.
The appellant approached the Assistant Commissioner for giving the appeal effect of Order-in-appeal dated 24.04.2006. However, the Assistant
Commissioner in his Order-in-original dated 16.11.2006, without giving opportunity of personal hearing, sanctioned the lower amount of Rs.1,11,370/-,
further directing adjustment of such amount out of demand of Rs.9,36,367/- arising out of Order-in-original dated 30.11.2005 (on the said date this
demand had been stayed by this Tribunal vide Stay Order No.1229/2006-Ex dated 01.11.2006).
The appellant filed application for review on 09.01.2007 before the Assistant Commissioner on the ground that Order-in-appeal dated 24.04.2006
passed by the Commissioner (Appeals) cannot be re-adjudicated by the Assistant Commissioner. However, by communication dated 18.01.2007 the
Assistant Commissioner declined to modify the Order-in-original dated 16.11.2006.
Being aggrieved, the appellant filed D.B. Civil Writ Petition No. 9275/2007 against orders of Assistant Commissioner dated 16.11.2006 and
18.01.2007 before the Hon’ble Rajasthan High Court.
During pendency of the Writ Petition, this Tribunal vide Final Order No. A/50529/2015-Ex.DB allowed the appeal and set aside the Order-in-
Original No. 110/2005 dated 30.11.2005 thereby setting aside the demand of Rs.9,36,367/-.
Thereafter the appellant filed Miscellaneous application before the Rajasthan High Court (in the writ application) to bring order of the Tribunal on
record. The Hon’ble Rajasthan High Court vide its Final Order dated 04.05.2017 directed the Department to decide the application dated
09.01.2007 (which was filed before the Assistant Commissioner and disposed by his order dated 18.01.2007). The Hon’ble High Court also
granted liberty to apply for revival of writ in case of difficulty.
The appellant submitted representation dated 17.05.2017 before the Deputy Commissioner alongwith copy of Hon’ble High Court dated
04.05.2017, praying for refund of the amount with interest in terms of Section 35FF read with Section 11BB of the Act.
The Deputy Commissioner without giving opportunity of personal hearing to the appellant passed order dated 19.06.2017 granting the truncated
refund of Rs. 1,11,370/-. Further, no order was passed relating to payment of interest claimed.
Being aggrieved by order dated 19.06.2017 passed by the Deputy Commissioner, the appellant filed miscellaneous application No. 524/2017, in the
disposed writ application, before the Hon’ble High Court on 13.09.2017. The Hon’ble High Court by its order dated 06.10.2017 disposed of
the Miscellaneous application in writ application, observing that it is of the opinion that the appellant should challenge the subsequent order (dated
19.06.2017) in appeal remedy, which was passed pursuant to the proceedings which were pending before the Authority. No fruitful purpose would be
served by reviving the writ application. The Hon’ble High Court further observed that the period which have been taken while considering the
review application, will be considered on filing delay condonation application, by the Appellate Authority.
In view of the order & indulgence of the Hon’ble High Court dated 06.10.2017, the appellant filed the appeal before the Commissioner
(Appeals) which have been dismissed on the ground of limitation, by impugned order dated 28.11.2017.
The appellant have submitted aforementioned facts by way of written submissions.
As per the ground of appeal the appellant have urged that the Commissioner (Appeals) has failed to appreciate the facts and circumstances and in
view of the indulgence granted by Hon’ble High Court, should have heard the appeal on merits and decided the same. Dismissing of appeal on the
ground of limitation has resulted in gross miscarriage of justice, inspite of the binding direction of Hon’ble High Court. The appellant had
approached the Hon’ble High Court in the miscellaneous application, within the period of limitation for appeal (plus the condonable period of ninety
days). Thus, the whole period from the date of order-in-original dated 19.06.2017 till the date of miscellaneous order dated 06.10.2017 should have
been excluded in view of the directions of Hon’ble High Court, read with Section 14 and 18 of the Limitation Act. The appellant was bonafidely
pursuing the remedy before the Hon’ble High Court in view of the directions of the Hon’ble High Court dated 04.05.2017. Accordingly, it has
been prayed that the impugned order may be set aside with a direction to hear and dispose of the appeal on merits by the Commissioner (Appeals).
Learned Authorised Representative appearing for the Revenue Shri Y. Singh have relied on the impugned order and further urged that the
Hon’ble High Court granted condonation of time only for the period from the date of filing of review application on 13.09.2017 till dismissal of the
review application on 06.10.2017.
Having considered the rival contentions, I find that the order of Hon’ble High Court dated 06.10.2017 has to be read with the earlier Final
Order of the Hon’ble High Court dated 04.05.2017. The Hon’ble High Court granted liberty to the appellant to apply for review or restoration
of the writ application in case of difficulty, while disposing of the writ application on 04.05.2017. Thereafter, when the appellant approached the
Hon’ble High Court in review on Miscellaneous application for revival of the application, the Hon’ble High Court directed the appellant to
pursue the appellate remedy in view of the subsequent Order-in-original dated 19.06.2017, (allowing truncated amount of refund). Thus, in the facts
and circumstances of the present case, limitation has to be computed on and from 06.10.2017 (plus the time taken in obtaining certified copy of the
miscellaneous order). Accordingly, I hold that the appeal filed before the Commissioner (Appeals) was within time. Therefore, this appeal is allowed
by way of remand to the Commissioner (Appeals) with the direction to hear the appeal on merits and pass a reasoned order after considering the
earlier Order-in-Appeal dated 24.04.2006, as well as the Final Order of this Tribunal dated 30.11.2005 and the other orders. The Commissioner
(Appeals) shall also consider the case of insubordination by the lower authority after passing of the Order-in-Appeal by the Commissioner (Appeals)
dated 24.04.2006.
Whatever amount is found refundable to the appellant shall be refunded forthwith within a period of sixty days from the order of the Commissioner
(Appeals) alongwith interest @ 12% under Section 35FF from the date of deposit till the date of refund as held by this Tribunal in the case of Parle
Agro Pvt. Limited vide Final Order No. 70180-70181/2021 dated 25.05.2021 (Delhi D.B.).
The appellant is also granted liberty to appear before the Commissioner (Appeals) and seek opportunity of hearing, alongwith a copy of this order.
(Pronounced on 23.06.2021).