M/S.Schneider Electric Business India Private Limited vs Commissioner Of Customs

Sulekha Beevi.C.S., Member (J)

As both these appeals involve a common issue, they are heard together and disposed by this common order.

Brief facts are that the appellant filed Bill of Entry dt. 24.06.2021 and 20.08.2021 for import of Lithium-Ion Batteries falling under Customs Tariff Heading 85076000. They were eligible for exemption from duty as per the Notification No.152/2009 dated 31.12.2009 which granted exemption from Basic Customs Duty. However, the appellant could not produce the Country of Origin certificate to establish that the goods are originating from the Republic of Korea. Since the appellant was in urgent requirement of subject goods, they self-assessed the Bills of Entry without claiming the exemption benefit as they could not produce the Country of Origin certificate. Later, the appellant obtained certificate and filed an appeal before the Commissioner (Appeals) challenging the assessment. The Commissioner (Appeals) vide order impugned herein held that the appeal is time-bared by limitation as the appeal was filed beyond the period of 3 months before the Commissioner (Appeals) and further it was also held that the appellant is not eligible for the benefit of the notification. Hence these appeals.

The Ld. Counsel Shri Rohan Muralidharan appeared and argued for the appellant. It is submitted that the Commissioner (Appeals) rejected the appeal on the ground of limitation observing that appellant has not filed application / request for condonation of delay under Section 128 of the Customs Act, 1962 though there is delay of 95 days. The Ld. Counsel submitted that the Bill of Entry was dt. 24.06.2021 and 20.08.2021. According to Section 128, an appeal has to be filed within 60 days from the date of communication of an order (self-assessment) and Commissioner (Appeals) has powers to condone a delay of further 30 days. The relevant period involved was during Covid-19 pandemic. The Hon’ble Supreme Court vide order dt. 10.01.2022 in Suo Moto Writ Petition (C) No.3 of 2020 has held that due to the Pandemic situation, the period noted in the judgment shall be excluded in computing the period of limitation under any law which prescribes the period of limitation. The relevant period in filing the appeals before Commissioner (Appeals) falls within the period of limitation excluded as per the decision of the Hon’ble Supreme Court. The Commissioner (Appeals) ought not to have rejected the appeals as barred by time.

3.1 It is submitted that the Commissioner (Appeals) in the impugned orders has noted that the appellant is not eligible for the benefit of exemption notification as the COO was produced belatedly. The Country of Origin certificate has been issued retrospectively and as per the notification the country of origin can be produced within a period of one year. The Tribunal in the case of Commissioner of Customs Vs Komos Automotive India Pvt. Ltd. vide Final Order No. 40860/2023 dt. 22.09.2023 has held that when the country of origin certificate has been issued retrospectively the same has to be considered to allow benefit of exemption notification. Ld. Counsel prayed that the appeals may be allowed.

Ld. A.R Shri R. Rajaraman appeared and argued for the Department. The findings in the impugned orders were reiterated. It is submitted that since the appeals have been rejected on the ground of limitation, the matter has to be remanded to the Commissioner (Appeals) to reconsider the issue.

Heard both sides.

The appeals have been rejected on the ground of limitation. As pointed out by learned counsel for appellant, during the relevant period (15.03.2020-28.02.2022) the limitation for filing the appeal before various forum was extended (excluded) by Hon’ble Supreme Court vide judgement dt. 10.01.2022 in Suo Moto Writ Petition (C) No.3 of 2020. The same applies in the present case. The Commissioner (Appeals) ought not to have rejected the appeals on the ground of being time barred. There is no requirement to file a petition for condonation of delay as the said period during the Pandemic has been excluded by the Hon’ble Apex Court. The rejection of appeals as time barred cannot be sustained and requires to be set aside, which

we hereby do. The matter is remanded to the Commissioner (Appeals) for reconsideration of the issue of benefit of exemption notification.

In such reconsideration of the issue, the Commissioner (Appeals) shall look into the Country of Origin certificate issued retrospectively as per the Customs Tariff (Determination of Origin of Goods under the Preferential Trade Agreement between the Governments of the Republic of India and the Republic of Korea) Rules, 2009 to ascertain the eligibility of exemption. The decision of Tribunal in the case of Commissioner of Customs Vs Komos Automotive India Pvt. Ltd. (supra) on similar issue shall also be looked into by the appellate authority.

In the result, the impugned orders are set aside. The matter is remanded to the Commissioner (Appeals) who shall dispose of the case within a period of two months from the date of receipt of this order.

Both the appeals are remanded to Commissioner (Appeals) with the above observations.