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UNIROYAL TEXTILE INDUSTRIES LTD., PANCHK v. COMMISSIONER OF CUSTOMS, GROUP V-A, AIR - CUSAP-2-2005  RD-P&H 4601 (21 July 2006)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CUSTOM APPEAL NO. 2 OF 2005
DATE OF DECISION: 01.08.2006
UNIROYAL TEXTILE INDUSTRIES LTD., PANCHKULA ....APPELLANT
COMMISSIONER OF CUSTOMS, GROUP V-A, AIR CARGO, NEW CUSTOM HOUSE NEW DELHI
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL
HON'BLE MR. JUSTICE RAJESH BINDAL
PRESENT: MR. R.K. CHHIBBAR, SENIOR ADVOCATE WITH MR. CHETAN DAYAL, ADVOCATE
FOR THE APPELLANT
MR. ASHWINIE BANSAL, ADVOCATE
FOR THE RESPONDENT
Rajesh Bindal, J.
The appellant has approached this Court against the order passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (for short 'the Tribunal'), dated 24.2.2005 raising eight substantial questions of law. As is evident from order dated 11.7.2006 the appeal was confined to proposed question Nos. (iii) and (v), which are extracted below: "iii) Whether, the impugned letter dated 30.6.2000 issued by the Ld. Deputy Commissioner of Customs Air Cargo, New Delhi to the appellant can be said to be a "decision or order" passed within the meaning of section 28, 128 and 130 of the Customs Act, 1962 ?
v) Whether the order dated 29.9.2003 passed in appeal under section 128 of the Customs Act, 1962 against the impugned letter dated 30.6.2000 issued/passed by Deputy Commissioner of Customs, New Delhi holding CUSTOM APPEAL NO. 2 OF 2005 
the appeal to be barred by limitation and thus not maintaining is liable to be set aside ?" On first question, the contention of the appellant is that a communication dated 30.6.2000 sent by the Deputy Commissioner (Customs) to the appellant raising a demand of Rs. 8,02,967/- on account of duty was not in the form of an order passed within the meaning of Sections 128 and 130 of the Customs Act, 1962 (for short 'the Act'). According to him, in this communication neither any reason has been recorded nor any plea raised by the appellant has been dealt with, hence, the same cannot be termed as a reasoned order. He has further contended that even the show cause notice should be treated beyond a period of six months, as no notice under Section 28 of the Act could be issued to the appellant after expiry of a period of six months from the date of passing the order by the authority as envisaged under Section 128 of the Act and in the present case a show cause notice having been issued on 30.3.1999 against the assessment of duty on 11.9.1998, the same was clearly time barred, there being no allegation of fraud etc. against the appellant. Further it is submitted after receipt of communication dated 30.06.2000, the appellant had been representing before the authority for affording him personal hearing.
On the other hand, counsel for the respondent relied upon a judgment of Hon'ble the Supreme Court in Lajya Dyeing & Bleaching Works vs. Union of India 2003 (155) ELT 213 (SC), wherein a communication addressed to the assessee therein mentioning the details of duty already paid and which was required to be paid, determined after hearing the assessee therein, was held to be an order.
A perusal of order dated 30.6.2000, which according to the appellant was not an order, shows that the same itself provided towards the end of the order that an appeal from this order lies to the Appellate Commissioner of Customs. The relevant part thereof is extracted below: "An appeal against this order lies to the Appellate Commissioner of Customs, within three months from the date of receipt of this letter, as prescribed u/s 128 of the said Act and it should bear a court fee stamp of fifty CUSTOM APPEAL NO. 2 OF 2005 
paisa. The amount of duty as stated above shall have to be deposited u/s 128 of the said Act before the Appeal is entertained."
When the communication itself mentioned that the same was an order against which an appeal will lie to the next appellate authority and even the period of appeal as well as details regarding Court fee and the requirement of pre- deposit were also mentioned therein, still to say that the communication sent to the appellant was not an order is totally misconceived.
Further it is not disputed by the appellant that before passing the order the appellant was given due opportunity in the form of show cause notice to which the appellant had filed reply also. Accordingly, we do not find any merit in this contention of the appellant.
As far as second issue is concerned, as per the provisions of Section 128 of the Act, the appeal could be filed against the order of the Deputy Commissioner (Customs) to the Appellate Commissioner of Customs within three months from the date of receipt thereof. Admittedly, the order was received by the appellant on 11.7.2000 and appeal against the same was filed by the appellant on 14.2.2001, which was clearly delayed.
As far as the period of limitation is concerned, Section 128 of the Act provides that in case there is a delay in filing of appeal, the same can be condoned to the extent of further three months. Further from a perusal of order of the Commissioner (Appeals) it is evident that sufficient reason was not shown by the appellant for filing the appeal late. In the absence thereof, the authorities were not wrong in not condoning the delay in filing the appeal.
Accordingly, we do not find any merit in the appeal, the same is dismissed.
01.08. 2006 (ADARSH KUMAR GOEL)
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