Case Law Details
Commissioner of Customs (Exports) Vs Indian Oil Corporation Limited (CESTAT Chennai)
Brief facts are that IOCL filed the refund claim for refund of 4% special additional duty in terms of Notification No.102/2007-Cus dated 14.09.2007. After due process of law, the original authority sanctioned the refund claim. Against such order, the Department had filed the appeal before the Commissioner (Appeals). However it was observed by the Commissioner (Appeals) that though order was passed by the refund sanctioning authority on 11.12.2009 and the same was despatched on 18.01.2010, the Review Authority has passed Review Order only on 27.04.2010 which is beyond the period of three months as required under Sub Section (3) of Section 129D of Customs Act, 1962. The appeal was thus dismissed as time barred without going to the merits of the case.
Commissioner (Appeals) has discussed the reasons for dismissing the appeal filed by the Department as time barred. The Department had not produced any evidence to show the date on which the Reviewing Authority received the Order-in-Original. However, in the present appeal it is stated that the Reviewing Authority had received the order only on 29.01.2010 and that therefore the review order passed on 27.04.2010 is well within time. The learned counsel submitted that the said contention is only an afterthought. It is discussed by the Commissioner (Appeals) that even after repeated request the Department did not respond by giving the date on which the order was received by the Reviewing Authority. There is a delay in passing the review order and therefore the Commissioner (Appeals) has correctly dismissed the appeal.
FULL TEXT OF THE CESTAT CHENNAI ORDER
1. The above appeal is filed by the Department against the order passed by the Commissioner (Appeals) who dismissed the appeal filed by the Department on the ground of limitation.
2. Brief facts are that the respondent filed the refund claim for refund of 4% special additional duty in terms of Notification No.102/2007-Cus dated 14.09.2007. After due process of law, the original authority sanctioned the refund claim. Against such order, the Department had filed the appeal before the Commissioner (Appeals). However it was observed by the Commissioner (Appeals) that though order was passed by the refund sanctioning authority on 11.12.2009 and the same was despatched on 18.01.2010, the Review Authority has passed Review Order only on 27.04.2010 which is beyond the period of three months as required under Sub Section (3) of Section 129D of Customs Act, 1962. The appeal was thus dismissed as time barred without going to the merits of the case.
3. The learned Ms. Anandalakshmi Ganeshram appeared for the Department and reiterated the grounds of appeal. It is submitted by the learned AR that the order was received by the reviewing authority only on 04.05.2010.
4. The learned counsel Mr. M.N. Bharathi appeared for the respondent. It is submitted that in para 4,5 and 6, the Commissioner (Appeals) has discussed the reasons for dismissing the appeal filed by the Department as time barred. The Department had not produced any evidence to show the date on which the Reviewing Authority received the Order-in-Original. However, in the present appeal it is stated that the Reviewing Authority had received the order only on 29.01.2010 and that therefore the review order passed on 27.04.2010 is well within time. The learned counsel submitted that the said contention is only an afterthought. It is discussed by the Commissioner (Appeals) that even after repeated request the Department did not respond by giving the date on which the order was received by the Reviewing Authority. There is a delay in passing the review order and therefore the Commissioner (Appeals) has correctly dismissed the appeal.
5. Heard both sides.
6. There is absolutely no evidence adduced as to show the date on which the order was received by the Reviewing authority. The Commissioner (Appeals) has discussed in the impugned order that even after repeated requests the Department did not furnish the date on which the original order was received by the Reviewing Authority. The discussion made by Commissioner (Appeals) in para 4,5 and 6 is reproduced as under:
“4. I have carefully gone through the case records and written submissions made by the Respondent. From the records, it is seen that though the order was signed on 11.12.2009 by the LAA, the same was prepared and dispatched on 18.01.2010, but the review order was passed on 27.04.2010. Hence, there was a delay of 11 days over and above the stipulated time of 3 months.
5. Before going into the merits of the case it is seen that the procedures laid down under Section 129 D ibid was not followed. According to 129D(3)& (4) reads as follows::
“[(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.]
(4) Where in pursuance of an order under sub-section (1) or subsection (2), the adjudicating authority or any officer of customs authorized in this behalf by the [Commissioner of Customs], makes an application to the Appellate Tribunal or the [Commissioner (Appeals)] within a period of [one month] form the date of communication of the order under sub-section (1) or sub-section (2) to the adjudicating authority. Such application shall be heard by the Appellate Tribunal or the [Commissioner (Appeals)], as the case may be, as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of sub-section (4) of section 129A shall, so far as maybe, apply to such application.”
6. From the above, it is clear that the review order should be passed within three months from the date of communication of the O-In-O and the appeal under Section 129D should be made within a further period one month from the date of communication of the review order. Most importantly the review order has not mentioned about the receipt of the O-In-O. There is no condonation provisions for the Commissioner (Appeals) in respect of appeals filed under section 129D.”
7. The very same facts and issue came up for consideration before this Tribunal and vide Final Order No.40203-40205!2023 dated 27.03.2023, in which it was observed as under:
“11. We do not understand what prevented the Department from submitting before the Commissioner (Appeals) that the Order-in-Original was received by the Review Cell on the respective dates on which they have stated in the grounds of appeal. As 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-inOriginal 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.
12. As discussed we cannot accept the contention of the Department that the orders were received by the Reviewing Authority only on 10.02.2010/16.04.2010/14.07.2010. We find no grounds to interfere with the observation and findings of the Commissioner (Appeals).”
12. From the foregoing, we do not find any ground to take a different view. The impugned order sustained. The appeal filed by the Department is dismissed. The cross objections are disposed accordingly.
(Pronounced in the open court on 26.04.2023)
