Page 207 - ELT_1st June 2020_VOL 372_Part 5th

2020 ] IN RE : DCS INTERNATIONAL TRADING PVT. LTD. 741

Revision application - Limitation - Delay in filing - Condonation of -
Bona fide mistake - Filing of appeal before wrong forum - HELD : If period
consumed in pursuing appeal before CESTAT excluded, applicant taken 168
days in filing Revision Application i.e. 90 days for filing appeal with CESTAT
usually which should have been Revisionary Authority in ordinary course and
subsequently 78 days in filing before Revisionary Authority after dismissal of
appeal by Tribunal - Delay in filing application on account of wrongly filing
appeal in CESTAT seems to be bona fide mistake and hence condonable - Ap-
plication allowed - Section 129DD(2) of Customs Act, 1962. [para 7]
Power of Commissioner (Appeals) - Remand powers - Power to re-
mand case back to original stands withdrawn with effect from 11-5-2001 vide
Finance Act, 2001 - Commissioner (Appeals) authorized to act as Adjudicating
Authority and obliged to pass necessary orders if order passed by original Ad-
judicating Authority not legal and proper - Commissioner (Appeals) directed
to decide classification in respect of Shipping Bills remanded back to adjudi-
cating authority - Section 35A of Central Excise Act, 1944. [paras 8, 9]
Matter remanded
CASE CITED
MIL India Ltd. v. Commissioner — 2007 (210) E.L.T. 188 (S.C.) — Relied on ............................ [Paras 3, 8]
[Order]. - A Revision Application No. 380/37/DBK/2017-RA, dated 7-9-
2017 has been filed by the Commissioner of Customs, Air Cargo Export, Delhi
(hereinafter referred to as the applicant) against the Order-In-Appeal No. CCA
(Cus/ACE/2439-40/2015, dated 31-12-2015 passed by the Commissioner of Cus-
toms (Appeals), New Customs House, Near IGI Airport, New Delhi-110037
whereby the Order-in-Original No. RLM/ACE/66/2015, dated 13-5-2015 passed
by the Joint Commissioner of Customs, Air Cargo Export, Delhi has been set
aside to the extent of confirmation of demand of Rs. 1,92,97,378/- in respect of
108 Shipping Bills and denial of drawback amount of Rs. 20,86,067/- in respect of
six Shipping Bills for which drawback amount was not yet disbursed. However,
in respect of Shipping Bills which were filed after 12-12-2012 and for which sam-
ples had been drawn the case was remanded back to the original adjudicating
authority with the direction to pass a fresh order after the receipt of the test re-
port.
2. The brief facts of the case are that respondent had filed 114 Shipping
Bills under claim for drawback prior to 12-12-2012 for the goods declared as Hu-
man hair, double drawn washed & cleaned well dressed under RITC 05010010. The
said Shipping bills were assessed finally and accordingly the drawback was dis-
bursed except in respect of 6 Shipping bills for which drawback amount had not
been released. The SIIB branch of ACC, Export, during the scrutiny of Shipping
Bill No. 2991502, dated 12-12-2012 bearing the same description of goods which
was declared on 114 Shipping Bills filed prior to 12-12-2012 observed that the
goods in question were not ‘unworked’ but ‘worked’ and were therefore rightly
classifiable under Chapter 67 where the fate of drawback was nil instead of 1% as
was being claimed by the respondent under Chapter 5 of the Drawback Sched-
ule. Accordingly, the samples were drawn and sent for testing and export con-
signments were allowed clearance provisionally after conversion of drawback
Shipping bills into non Drawback Shipping bill as per the request of the re-
spondent. This fact has been stated in Order-in-Original. CFSL vide their report
EXCISE LAW TIMES  1st June 2020  207