Commissioner of Customs Vs Saraswathi Saw Mills (CESTAT Chennai)
Held that there was no reason to disbelieve, the observation made by the Commissioner (Appeals) that there was no evidence available before him as to the date on which the Reviewing Authority received the order. Appeal by department dismissed as time barred.
Facts- The respondents had filed refund claims in terms of Notification No. 102/2007-Cus dated 14.09.2007 for refund of 4% additional duty of customs paid by them in respect of goods imported and subsequently sold. The refund sanctioning authority sanctioned the refund claim. Against such order of sanctioning the refund claim the Department filed appeals before the Commissioner (Appeals). However, the Commissioner (Appeals) vide order impugned herein observed that the review order as required under Sub Section (2) of Section 129D of Customs Act, 1962 has been passed by the Reviewing Authority beyond the period of three months as envisaged under Sub Section (3) of Section 129D of Customs Act, 1962. The appeals filed by the Department were thus dismissed as time barred.
Conclusion- Held that there was no reason to disbelieve, the observation made by the Commissioner (Appeals) that there was no evidence available before him as to the date on which the Reviewing Authority received the order.
There is no evidence to substantiate the contention of the Department that the Order-in-Original was received on such dates by the Review Cell and as there is no reason to dis-believe the findings of the Commissioner (Appeals) that there was no evidence as to the date on which Order-in-Original was received by the Reviewing Authority, the strong inference that can be drawn is that there is a delay in passing the review orders in these appeals.
FULL TEXT OF THE CESTAT CHENNAI ORDER
1. The issue in these appeals being the same they are heard together and disposed of by this common order. The above appeals are filed by the Department against the order passed by the Commissioner (Appeals) who dismissed the appeals of the Department as time barred.
2. The respondents had filed refund claims in terms of Notification No. 102/2007-Cus dated 14.09.2007 for refund of 4% additional duty of customs paid by them in respect of goods imported and subsequently sold. The refund sanctioning authority sanctioned the refund claim. Against such order of sanctioning the refund claim the Department filed appeals before the Commissioner (Appeals). However, the Commissioner (Appeals) vide order impugned herein observed that the review order as required under Sub Section (2) of Section 129D of Customs Act, 1962 has been passed by the Reviewing Authority beyond the period of three months as envisaged under Sub Section (3) of Section 129D of Customs Act, 1962. The appeals filed by the Department were thus dismissed as time barred.
3. The learned AR Ms. Anandalakshmi Ganeshram appeared and argued on behalf of the Department. It is submitted by the learned AR that the seal impressed on the first page of the Order-in-Original would show that the order was received by the Reviewing Authority much later. The Commissioner (Appeals) has computed the period of three months from the date of the Order-in-Original instead of the date of communication of the order. The learned AR submitted that if the date on which the order was received by the Reviewing Authority is taken into consideration for computing the period of three months, there would be no delay in passing the review order. She prayed that the appeals may be allowed.
4. The learned counsel Ms. M. Pooja appeared for the respondent in Sl. No.1. None appeared for the respondent in Sl. No.2. We heard the submissions made by the learned counsel and perused the records carefully.
5. Before addressing the issue of time bar it is necessary to reproduce the discussions made by the Commissioner (Appeals) in para 4,5,6 and 7 of the impugned order in appeal number C/40941/2013 which reads as under:
“4. I have carefully gone through the case records and the submissions made by the respondent. It is a widely accepted and general belief when an order sanctioning the refund is passed the description would have been verified and found correct and there is no discrepancy and if at all there is any difference they same shall have been recorded and the proportionate refund amount rejected. The conspicuous silence of the LAA shows that there is no difference between the description of the imported goods and the goods that were sold. Regarding the quantity difference, though not highlighted by the LAA, even assuming that it exists, should not be taken seriously as held in the recent judgment by the High Court of Gujarat.
5. Coming to the issue of limitation aspect as contested by the respondent, I find that appeal filed by the department is clearly hit by limitation.
“(3) Every order under sub-section (1) or sub-section (2), as the case may be, shall be made within a period of three months from the date of communication of the decision or order of the adjudicating authority.”
6. From the appeal filed before me, I find that the O-in-O was reviewed and order was passed by the Jurisdictional Commissioner of Customs beyond the stipulated period for such review as mandated under the Customs Act, 1962. The delay by which the review order was passed by the reviewing authority was 24 days approximately. The above delay was noticed based on the facts and figures available as such from the appeal papers filed before me by the department. In order to find out whether actually any delay exist in passing the review order, the original case files were called for from the department yielded no result. The repeated request in calling for the case files proved futile.
7. The question of limitation was decided by me on the above basis with the available dates, which appears latest among the date of passing of the order, dispatch date of the order or the date on which the job number / O-In-O number was generated. I am totally not satisfied the way the department responds for the appeal filed by them. The way they filed the appeal and treated the same makes a mockery of this forum. The reviewing authorities at least could have lessened my burden by mentioning the exact date of receipt of the original orders in their review orders. Such an action by the reviewing authorities would have helped me to take a proper and just decision on merits instead of stumbling on the limitation aspect.”
6. The very same discussion has been made by the Commissioner (Appeals) in the impugned order of appeal No.40940/2013. Being a repetition, we do not think it necessary to reproduce the same again. Similar appeals had come up for hearing before the Tribunal wherein the Commissioner (Appeals) had dismissed appeals filed by Department on the ground of being time barred. In those cases also it was urged by the Department that the seal impressed on the Order-in-Original by the Reviewing Cell would establish that the order was received by the Reviewing Authority on a much later date. The Tribunal after considering the submissions made by the learned AR and perusing the records observed that there was no reason to disbelieve, the observation made by the Commissioner (Appeals) that there was no evidence available before him as to the date on which the Reviewing Authority received the order. The discussions made by the Tribunal in Final Order No. 40183-40184/2023 dated 22.03.2023 reads as under:
