Case Law Details
Commissioner of Customs Vs HCL Info Systems (CESTAT Chennai)
Introduction: In a recent order, the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) in Chennai dismissed an appeal by the Customs department due to its failure to prove a delay in receiving an order from the Review Cell. This case highlights the importance of timely administrative processes and maintaining accurate records. In this article, we provide a comprehensive analysis of the case, including the background, arguments made by both parties, and the tribunal’s decision.
1. Background: The appeal filed by the Customs department was in response to the order passed by the Commissioner (Appeals), who had dismissed the department’s appeal as being time-barred. The key issue revolved around whether there was a delay in passing the review order by the department, which had an impact on the timeline for filing an appeal.
2. Arguments by the Customs Department: The Customs department contended that there was no delay in passing the review order. They argued that the Order in Original, which sanctioned a refund to the respondent, was signed on February 26, 2010. However, it was only issued on March 4, 2010. The Commissioner (Appeals) computed the period of passing the review order from the date of the order’s issue (March 4, 2010) and determined that there was an 8-day delay in passing the review order. The Customs department claimed that this calculation was erroneous and sought to have the appeal allowed.
3. Arguments by the Respondent: The respondent countered the Customs department’s claims. They asserted that it was implausible that the Order in Original, issued on March 4, 2010, was received by the Review Cell only on March 11, 2010. The respondent provided evidence, including a copy of the review order passed by the Review Cell on June 10, 2010. They argued that if the Review Cell had received the review order on June 10, it could have been delivered within the same building within the next day. The respondent also highlighted that the Commissioner (Appeals) had repeatedly requested the department to provide the date of receipt of the Order in Original by the Review Cell, but the department failed to do so.
4. CESTAT Chennai’s Decision: CESTAT Chennai, taking into account the facts and previous decisions, upheld the Commissioner (Appeals) findings. It stated that there was no evidence to establish the date on which the Order in Original was received by the Review Cell. The tribunal noted that even though the Customs department claimed the Order in Original was received on March 11, 2010, they had not provided evidence to support this claim. Additionally, the tribunal expressed concern about the department’s failure to cooperate in providing requested documents. In the absence of conclusive evidence and the department’s cooperation, the appeal was dismissed.
Conclusion: The case of the Commissioner of Customs vs. HCL Info Systems before CESTAT Chennai serves as a reminder of the need for accuracy and transparency in administrative processes, particularly in time-sensitive matters. The failure to provide supporting evidence and address concerns raised by the Commissioner (Appeals) had a detrimental impact on the Customs department’s appeal. This case emphasizes the importance of maintaining clear records, providing timely responses to authorities’ requests, and acting in good faith in the course of judicial proceedings.
FULL TEXT OF THE CESTAT CHENNAI ORDER
Brief facts of the case are that the above appeal has been filed against the order passed by Commissioner (Appeals) who dismissed the appeal filed by the department as being time-barred.
2. The learned Smt. O.M. Reena, ADC (AR) appeared and argued for the appellant-department. It is submitted that the Order in Original sanctioning refund to the respondent was signed on 26.2.2010. The same was issued only on 4.3.2010. The Commissioner (Appeals) computed the period of passing of the review order from the date of issue of the order (4.3.2010) and held that there is a delay of 8 days in passing the review order. The Commissioner (Appeals) has thus erroneously dismissed the appeal filed by the department. The learned AR adverted to the Order in Original and submitted that the seal/stamp impressed on the first page of the Order in Original by the Review Cell would show that the Order in Original was received by the Review Cell only on 11.3.2010. Without taking note of this date, which is the date of communication of the order to the Review Cell, the Commissioner (Appeals) has dismissed the appeal observing that there is a delay of 8 days in passing the review order. It is prayed that the appeal may be allowed and the matter may be remanded to the Commissioner (Appeals) for deciding on merits.
3. The learned counsel Ms. Pallavi Ganesh appeared and argued for the respondent. It is submitted by the learned counsel that the Order in Original issued on 4.3.2010 has been received by the Review Cell only on 11.3.2010 is unbelievable and cannot be accepted. Both these offices are stationed in the very same building and it could be served within the next day itself. To substantiate her claim, the learned counsel produced a copy of the review order passed by the Review cell on 10.6.2010 and stated that the same has been received by the adjudicating authority for filing appeal before the Tribunal on the next day itself i.e. 11.6.2010. If the order passed by the Review Cell could be handed over or received by the adjudicating authority stationed in the very same building on the next day itself, the contention of the department that the Order in Original was received by the Review Cell only on 11.3.2010 cannot be accepted. The discussions made by the Commissioner (Appeals) in para 5 and 6 was adverted to by the learned counsel to submit that even after repeated reminders, the department has not furnished the date on which the Order in Original was received by the Review Cell. It is also submitted that similar matters were considered by the Tribunal vide Final Order No. 40183 and 40184/2023 dated 23.3.2023 in which the Tribunal had held that there is no ground to disbelieve the observations made by the Commissioner (Appeals) with regard to the delay in passing the review order. The learned counsel prayed that the appeal may be dismissed.
4. Heard both sides.
5. The very same issue of delay in passing the review order had come up before this Tribunal in several other matters. The Commissioner (Appeals) has noted in para 5 and 6 as under:-
“5. In the present appeal, prima facie there exists a limitation aspect with regard to the review order under section 129D(3) which states:-
(3) Every order under sub-section (1) of 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 8 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.”
It is seen that even after much efforts, the Commissioner (Appeals) could not get details from the department as to the date of receipt of the Order in Original by the Review Cell. If the Department had knowledge about the date of receipt of the Order in Original by the Review Cell as being 11.3.2010, they ought to have furnished such evidence before the Commissioner (Appeals) itself.
6. The Tribunal in similar matters had considered and observed as follows:-
“11. On going through the discussions made by Commissioner (Appeals) in the above stated paragraphs, the strong inference that can be drawn is that there was no evidence available to establish as to the date on which the Order-in-Original was received by Reviewing Cell and apparently there is delay in passing the Review Order. The Commissioner (Appeals) has taken all effort to call for the files to check the date of receiving the order by the Reviewing Authority so as to avoid dismissing the appeals as time barred. His efforts did not see any result and had to dismiss the appeals as time barred.
12. We have perused the review order dated 09.06.2010 and 15.06.2010. Surprisingly, in both review order, the date of receiving the Order-in-Original by the Reviewing Cell is not mentioned. When Sub Section (3) of Section 129193D prescribes a time frame of three months from the date of receiving the order passed by adjudicating authority, it is necessary and would be convenient to mention it in the review order.
13. We are able to see that these appeals are filed before the Tribunal with copies of Orders-in Original having a date seal of the Review Cell, on the first page of the order itself. We are unable to understand, if the seal was present, why the Commissioner (Appeals) had not taken note of such a clear seal affixed on the Order-in-Original. What prevented the department from producing it before the Commissioner (Appeals) even after repeated request. How did the seal appear for the purpose of filing an appeal before the Tribunal. The Bench raised these doubts to the learned AR as to what is the reason that the Commissioner (Appeals) was not able to take notice of such seal if it was present on the order while considering the appeal. The learned AR was not able to reply.
14. We also observe that the strongly worded anguish expressed by the learned Commissioner (Appeals) in the impugned order should have been taken very seriously by the Learned Committee of Chief Commissioners. They should have enquired into the reasons why the department did not respond with promptness to repeated requests by the Learned Commissioner (Appeals) calling for the original case file from the department. If they have done so and were satisfied by the enquiry that there was only a genuine misunderstanding of facts or that there was an explainable delay in submitting the files as requested by the Learned Commissioner (Appeals) and that the Orders-in-Original were actually reviewed in time, they should have mentioned their findings while filing their appeal. It may have helped us to appreciate the situation better. On the converse if it was found that the Commissioner (Appeals) was correct they could have avoided filing an appeal thus saving a lot of unproductive work.
15. In the facts and circumstances of the matter we are strongly of the opinion that the seal seen affixed on the photo copy of the Orders-in-Original found in the annexure to the appeal filed by the department, purporting to show the date of receipt of the order in the review section, to be suspect. Moreover we have no reason to disbelieve the Commissioner (Appeals) that no evidence was placed before him as to the date on which the Orders-in-Original was received by the reviewing authority, in spite of repeated requests. Revenues actions should be beyond suspicion. Hence the strong inference that can be drawn is that there was no evidence available to establish as to the date on which the order-in-original was received by the Review Cell and apparently there was a delay in passing the review order.
16. We would at this stage like to caution all parties concerned that any interference in the course of administration of justice is an offence punishable under law. If a forged or fabricated document is filed in court to get some relief the same amounts to interference with the administration of justice. Sub section (8) of section 129C of the Customs Act, 1962 reads as under:
“SECTION 129C. Procedure of Appellate Tribunal. —
… … …
(8) Any proceeding before the Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purpose of section 196 of the Indian Penal Code (45 of 1860), and the Appellate Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).”
Section 193 of the Indian Penal Code is reproduced as below:
“Section 193 in The Indian Penal Code
193. Punishment for false evidence.—Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine, and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.”
17. We are of the opinion that such incidents should not occur in future and considering that similar appeals are being noticed from time to time, we therefore direct the Registry to issue a copy of this order to the jurisdictional Principal Chief Commissioner who is directed to issue instructions to the Committee of Commissioners, so that appeals of this nature are filed with due seriousness and after satisfying themselves about the truth of the matter, as discussed above. We say so, because the Tribunal cannot be taken as a forum to do deceptive acts. We also direct the Principal Chief Commissioner to issue instructions so as to include the date of receiving the Order-in-Original by the review cell in the Review Order itself.
18. As discussed, we cannot accept the contention of the department that the orders were received by the reviewing authority only on 11.3.2010 / 16.3.2010. We find no grounds to interfere with the observations and findings of the Commissioner (Appeals). 19. In the result, the impugned orders are sustained. The appeals filed by the department are dismissed.”
7. Taking note of the facts into consideration and also the decisions passed by this Tribunal, we are of the view that the appeal filed by the department is without merits. The impugned order is sustained. The appeal is dismissed.
(Dictated and pronounced in open court)
