Mr. S. Manikumar, J.

Civil Miscellaneous Appeal is directed against the Final Order No. 40100 of 2016, dated 25.01.2016, passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), South Zonal Bench, Chennai 600 006, declining to entertain the appeal, as time barred.

2. Short facts leading to the appeal are that the appellant submitted a Bill of Entry on 26.08.2006, for import of natural rubber and the goods were assessed. Part of goods were cleared duty-free and part of goods were cleared on payment of appropriate customs duty on 13.09.2006. Appellant has contended that the order of assessment, dated 26.08.2006, was erroneous, on the grounds that the imported goods are classifiable under CTH 4001 22 00 under CN 21/2002 Sl. No. 491, which attracts duty at the rate of 20% + Nil + 2% + 4%, and at the time of assessment, the goods were classified under CTH 400110.10, which attracts higher duty and at the time of assessment, the same was not noticed by them. The appellant has contended that when they opted for reassessment of bill of entry, the same was not accepted by the Deputy Commissioner of Customs (DEEC), Customs House, Chennai and thus, in the above said circumstances, an appeal was filed before the Commissioner of Customs (Appeals), Chennai, with delay. They has prayed to condone the delay, as a special case. That apart, they have also submitted an application for refund of excess duty. While considering the prayer for condonation, the Commissioner of Customs (Appeals), Chennai, has summarised their case, as hereunder:

“This is an appeal filed by M/s. Falcon Tyres Limited, Mysore-17 (hereinafter referred to as appellant) against the order of assessment in B/E. No. 283864, dated 26.08.2006, in case of import of “Natural rubber SIR 20”. The revenue classified the goods under CTH 40011010 at a rate of duty of 70% BCD + 0% CVD + 2% CESS and 4% Addl. Duty. Part consignment was allowed duty free clearance under advance licence and the rest was cleared on payment of duty by cash. The appellants sought for reassessment of the Bill of Entry for change of classification to CTH 40012200.

In the grounds of appeal and written submissions, the appellants had averred that the “natural rubber SIR 20 grade (Technical Specified Rubber)” would fall under CTH 40012200 as per CN 21/2002 Sl. No. 491, attracting duty @ 25% + Nill + 2% + 2% + 4% whereas they had paid higher duty due to wrong classification. Shri.Bijur, Purchase Officer appeared for the personal hearing on behalf of the appellant and reiterated what they stated in the appeal.”

On the aspect, as to whether, the appeal filed beyond the condonable period, can be entertained, vide order, dated 26.07.2007, the Commissioner of Customs (Appeals), ordered as hereunder:

“I find that the order of assessment is dated 29.08.2006 and the duty was paid on 13.09.2006 whereas the appeal has been filed on 03.04.2007 in the instant case. As per Section 128 of Customs Act, 1962, any appeal before Commissioner (Appeals) is required to be filed within the statutory provisions of 60 days with a further condonable period of 30 days. The appeals in the instant case have been filed on 03.04.2007 which is beyond the extendable period also. Hence, the appeals is liable to be rejected as time barred.

Since the appeal is decided on the limitations of time, I am not going into the merits of the case.”

Being aggrieved by the dismissal of the appeal, as time barred, the appellant has filed an appeal to the CESTAT, Chennai. After hearing both sides, the CESTAT, Chennai, has rejected the appeal, as hereunder:

“Appellant's contention is that they have filed appeal not against bill of entry but against rejection of reassessment by the department which is not justified. On perusal of copy of note sheet file which is marked as AC(EDI)/DC(EDI)/DC(Gr.7) on 20.02.2007, we find that appellant cannot