CINERAMA PRIVATE LIMITED Vs. COMMISSIONER OF CUSTOMS, BANGALORE

JUDGEMENT

(1.) THIS appeal arises from OIA No. 107/2005 dated 9 -12 -2005. The Commissioner (Appeals) has dismissed the appeal on time -bar inasmuch as that the appeal has been filed before him after a lapse of over fourteen months. The appellants refund application was rejected on 24 -3 -2004 by the Assistant Commissioner (Refunds). The appellants were due certain amounts to the Government to an extent of Rs. 2,20,612/ - being the short levy with regard to Bill of Entry No. 017302 dated 17 -8 -1991. This claim was barred by time and no Show Cause Notice had been issued. However, in the OIO, the Assistant Commissioner adjusted the refund amount with the time -barred dues to the Government. This order was required to have been challenged before the Commissioner (Appeals) within the period of limitation under Section 129A of the Customs Act. However, the appellants chose their own time to file the appeal before the Commissioner (Appeals) on 3 -6 -2005. As it was filed beyond the period prescribed under the relevant Section, the Commissioner (Appeals) has dismissed the appeal on time -bar.

(2.) THE learned Counsel submits that the OIO cannot be considered as a speaking order. They had made applications to the Assistant Commissioner to pass a speaking order. They were informed by letter dated 12 -4 -2005 that already an appealable order dated 24 -3 -2004, that is the OIO, had been passed and the question of passing any other order does not arise. The learned Counsel submits that this letter dated 12 -4 -2005 could be taken as a period for limitation and he submits that the OIO has to be treated only as a correspondence and in this regard, relies on the ruling rendered by the Bombay High Court in the case of Deccan Sales Corporation and Another v. Assistant Collector of C.Ex. and Others - 1980 (6) E.L.T. 695 (Bom.) wherein, on the facts of that case, the High Court had clarified that the correspondence cannot be considered as an appealable order. Similar view was expressed by the Calcutta Bench in the case of Sai Sulphonates Pvt. Ltd. v. CCE, Kolkata -V - 2006 (193) E.L.T. 575 (Tri.I -Kolkata).

(3.) THE learned JDR points out to the OIO, which is an order under the provisions of law and the Assistant Commissioner has clearly given Order No. C. S46/21/2004 -Refunds/1759/04, dated 24 -3 -2004. It is in the form of an order only and not a correspondence as it makes very clear about the rejection of the refund claim and adjustment of the amounts to the Government dues payable by the appellant under the provisions of Section 142(1)(a) of the Customs Act, 1962. He distinguishes the citations relied by the Counsel.