Kalmar India Private Limited Vs Commissioner of Customs (CESTAT Chennai)
CESTAT Chennai held that order holding appeals to be time-barred is set aside since period spent honestly and diligently by a litigant prosecuting a proceeding before a wrong forum is to be excluded while computing limitation.
Facts- The appellants are regularly importing “Spreaders RSX40″ from Malaysia classifiable under CTH 84289090. The said goods are exempted from the payment of basic Customs duty under S. No. 696 of Notification No.53/2011-Customs dated 01.07.2011. As the appellants were not in possession of Certificate of Origin (COO) at the time of filing the bills of entry, they cleared the goods by paying merit rate of duty. Subsequently, on receipt of the said COO, the appellants requested the Dy. Commissioner of Customs (Refunds) to grant refund. The Dy. Commissioner of Customs informed the appellants that no re-assessment shall be allowed unless the order of assessment including self-assessment is duly modified by way of appeal. Aggrieved, the Appellants filed Appeals before the Commissioner of Customs (Appeals II), Chennai who after due process of Law, rejected the Appeals.
Conclusion- Held that it is a settled principle under Section 14(1) of the Limitation Act 1963 that the period spent honestly and diligently by a litigant prosecuting a proceeding before a wrong forum is to be excluded while computing limitation, provided the prior proceeding was bona fide and prosecuted with due diligence and the prior forum was unable to entertain the matter. Consequent upon the exclusion of the said two- year period, the appeal filed by the appellant before the Commissioner (Appeals) is to be treated as within time and the impugned order holding the appeals to be time-barred is hereby set aside to the extent it relates to delayed/time barred Appeals.
