- (1.) In this writ petition filed under Articles 226/227 of the Constitution of India, the petitioner has prayed for issuance of a writ in the nature of certiorari for quashing the order-in-appeal dated 27.11.2013 (Annexure P-14) passed by the Commissioner (Appeals) under Section 128 of the Customs Act, 1962 (in short "the 1962 Act") vide which respondent No.4 had dismissed the application for condonation of delay as well as the main appeal.
(2.) Put shortly, the facts, necessary for adjudication of the instant petition as narrated therein may be noticed. The petitioner imports Zinc ash and Zinc Skimming for manufacture of fertilizer used by the farmers for agriculture purposes. The respondents in respect of goods imported assessed all the consignments taking assessable value as 40% of the London Metal Exchange (LME) which was considered in case of material without metallic contents and in case of metallic contents, value was further loaded as per formula (Annexure P-1) laid down by the Commissioner of Customs, Nhava Sheva. Various importers filed CWP No. 6292 of 2010 before this Court against the parameters laid by the respondents. This Court vide order dated 7.4.2010 (Annexure P-2) disposed of the writ petition and directed the Chief Commissioner, Central Excise and Customs to look into the matter and take a decision thereon in accordance with law. In pursuance of the order passed by this Court, the Chief Commissioner vide order dated 7.5.2010 (Annexure P-4) approved the formula. The Commissioner (Appeals) also upheld the application of formula. The Commissioner (Appeals) vide order dated 15.1.2010 (Annexure P-3) upheld the assessment order passed by the adjudicating authority. The importers filed CWP Nos. 9146-52 of 2010 for quashing of the assessment order dated 15.1.2010 (Annexure P-3) and order dated 7.4.2010 (Annexure P- 4) passed by the Chief Commissioner. This Court vide order dated 1.12.2010 (Annexure P-5) while disapproving the formula, quashed the aforesaid orders (Annexures P-3 and P-4) and remanded the matter to the Assessing Officer to pass a fresh order in accordance with law. Thereafter, M/s Gupta Agri Care (P) Ltd. imported a consignment after passing of order dated 1.12.2010 by this Court and filed bill of entry and declared assessable value to the tune of USD 1125 PMT. However, respondent No.2 assessed the value of the consignment as USD 1217 PMT. M/s Gupta Agri Care (P) Ltd. filed CWP No. 1773 of 2011 before this Court against the assessment order dated 10.1.2011 and this Court vide order dated 18.3.2011 (Annexure P-6) allowed the writ petition. The assessment order dated 10.1.2011 was quashed and the matter was remanded to the Assessing Officer for deciding the same afresh in accordance with law. After that, on imported consignments, bill of entry was assessed on transaction value (Annexure P-7). In January 2013, the respondent started making assessment on the basis of formula laid down by the Commissioner of Customs, Nhava Sheva. In April, 2013, one container of Zinc Skimming was imported by the petitioner from Metaenterprices Ltd, United Kingdom. The petitioner filed bill of entry No. 9983040 dated 29.4.2013 along with copy of quality certificate, commercial invoice and packing list. The respondent drew the samples and sent the same for test to the Central Revenue Control Laboratory (CRCL), New Delhi and received the report in the third week of May, 2013. The Customs House Agent of the petitioner visited the office of the respondent and he was shown the copy of the test report. As per the test report, total zinc contents were 70% and metallic contents were 8%. The petitioner declared the value of the goods as USD 605 PMT. It was asked to write on the bill of entry that goods be assessed as per formula. However, the respondent unofficially detained the consignment of the petitioner. The petitioner filed CWP No. 12322 of 2013 before this Court for release of consignment. During the pendency of the writ petition, the respondent issued a show cause notice dated 12.6.2013 (Annexure P-9) for assessing the value in terms of the formula. The petitioner filed a reply dated 22.6.2013 (Annexure P-10) to the said show cause notice. The adjudicating authority vide order dated 16.7.2013 (Annexure P-11) assessed the value applying the formula. However, the petitioner paid short duty amounting to Rs. 15,693/-. The petitioner filed amended writ petition seeking quashing of the order dated 16.7.2013 (Annexure P-11). Since the said order was appealable, this Court vide order dated 31.10.2013 (Annexure P-12) disposed of the writ petition and relegated the petitioner to the remedy of appeal. It was further observed that in case the appeal was barred by limitation, the application of the petitioner shall be considered sympathetically taking into consideration pendency of the writ petition and the appeal shall be decided on merits. The application for condonation of delay was directed to be decided within 15 days of its filing. Thereafter, the petitioner filed an appeal along with application for condonation of delay pleading for exclusion of time in terms of Section 14 of Limitation Act, 1963 (in short "the 1963 Act") before respondent No.4 against the order dated 16.7.2013 (Annexure P- 11). The Commissioner (Appeals) vide order dated 27.11.2013 (Annexure P-14) dismissed the application for condonation of delay as well as the main appeal. Hence, the present writ petition.
(3.) The following twin issues that arise for resolving the controversy raised herein are:- (i) Whether the time spent in prosecuting litigation diligently and bonafide before the Commissioner (Appeals) under the 1962 Act is to be excluded under Section 14 of the 1963 Act while determining whether the appeal was within limitation or not? (ii) Whether the Commissioner (Appeals) under the 1962 Act could be considered as 'Court' within the meaning of Section 14 of 1963 Act.;