Delay in receipt of review order not proved hence order u/s 129D(2) assumed to have been passed beyond 3 months

Commissioner of Customs (Exports) Vs Nagappa Exports (CESTAT Chennai)

CESTAT Chennai held that appeal by department dismissed as time-barred as review order as required u/s 129D(2) of the Customs Act, 1962 assumed to have been passed beyond 3 months as no evidence produced proving delay in receiving review order.

Facts- Revenue has preferred the present appeal mainly contesting that the Commissioner (Appeals) has dismissed the appeals of the Department on the grounds of limitation. It was submitted that the dismissed the appeals on the grounds of limitation holding that the review order as required under Sub Section (2) of Section 129D of Customs Act, 1962 has been passed beyond the period of three months as envisaged in Sub Section (3) of Section 129D of Customs Act, 1962. It is argued by the Department that the Commissioner (Appeals) has computed the period of three months from the date of Order-in-Original whereas the period of three months ought to have been computed from the date of receiving the Order-in-Original by the Reviewing Authority.

Conclusion- 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-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 involved in all these appeals being the same, the appeals were heard together and are disposed of by this common order. The appeals are filed by the Department against the order passed by the  Commissioner (Appeals) who dismissed the appeals of the Department on the grounds of limitation.

2. On behalf of the Department, it is submitted that the Commissioner (Appeals) has dismissed the appeals on the grounds of limitation holding that the review order as required under Sub Section (2) of Section 129D of Customs Act, 1962 has been passed beyond the period of three months as envisaged in Sub Section (3) of Section 129D of Customs Act, 1962. It is argued by the Department that the Commissioner (Appeals) has computed the period of three months from the date of Order-in-Original whereas the period of three months ought to have been computed from the date of receiving the Order-in-Original by the Reviewing Authority. If the period of three months is computed from the date of receiving the Order- in­ Original by the Reviewing Authority, the review order passed is well within three months. The dates relevant for consideration are as below:

3. The learned AR submitted that the Commissioner (Appeals) has erred in not calling for the relevant case records of the Reviewing Authority to ascertain the date of receipt of Order-in-Original by the Review Cell. Merely because the office of adjudicating authority and Reviewing Authority are housed in the same building, the Commissioner (Appeals) considered that the order would be received on the same day and thus happened to compute the period of three months from the date of Order-in-Original itself. These conclusions arrived by the Commissioner (Appeals) to hold that the appeal filed by the Department is time barred is not legal and proper. The learned AR prayed that the appeals may be allowed.

4. None appeared for the respondent in C/40744/2013 and C/40726/2013. In C/40773/2013, the learned counsel Ms. M. Pooja appeared and argued for the respondent. She adverted to the discussions made by the Commissioner (Appeals) in paragraphs 4, 5 and 6 of the impugned order and submitted that the Commissioner (Appeals) had made reasonable efforts to obtain the original case files to check the date of receiving the order by the Reviewing Authority. The Department was not able to provide any evidence as to the date on which the Reviewing Authority has received the order passed by the adjudicating authority. For this reason, the Commissioner (Appeals) has computed the period of three months from the date of the Order-in-Original. Though the Department contends that the Reviewing Authority has received the Order-in-Original only on 14.07.2010 in appeal No. C/40773/2013, they have not adduced any evidence to establish the same. It is also not explained by Department as to why they have not put forward this contention before the Commissioner (Appeals). The plea of the Department that the Reviewing Authority has received the Order‑ in-Original only on 14.07.2010 cannot be accepted. This is only afterthought to overcome the delay in passing the review order. She prayed that the appeal filed by the Department may be dismissed.

5. Heard both sides and perused the records carefully.

6. In all these appeals, the Commissioner (Appeals) has dismissed the appeals on the ground of being time barred. It is observed by the Commissioner (Appeals) that the reviewing order has been passed beyond the period of three months as required under Sub Section (3) of Section 129D of Customs Act, 1962. For better appreciation Sub Section (2) and (3) of Section 192D of Customs Act, 1962 noticed as under:

“Section-129D-

(2) The [Principal Commissioner of Customs or Commissioner of Customs] may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct [such authority or any officer of Customs subordinate to him] to apply to the [Commissioner (Appeals)] for the determination of such points arising out of the decision or order as may be specified by the [Principal Commissioner of Customs or Commissioner of Customs] in his order.

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(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.”

7. It is argued by the Department that when the period of three months is computed from the date of receiving the Order-in-Original by the Reviewing Authority, the review orders passed are well within time has prescribed under Sub Section (3) of 129D of Customs Act, 1962. The Department contends that the order passed by the adjudicating authority has been received by the Reviewing Authority on different dates such as 10.02.2010/16.04.2010/14.07.2010 as seen from the table above. However there is no evidence to support this contention. Further, it is also to be seen that the Commissioner (Appeals) in all the three cases has discussed that even after repeated request made to the Department the original case files were not furnished so as to check the date on which Order-in-Original was received by the Reviewing Authority. It is sufficiently brought out from the discussions made by the Commissioner (Appeals) that there was no evidence available before him as to the date on which the Order-in-Original was received by the Reviewing Authority. The discussion made by the Commissioner (Appeals) in this regard is very same in all the impugned orders. The paragraphs 5 and 6 in appeal No.C/40773/2013 is reproduced as under:

“5. 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 exact delay by which the review order was passed by the reviewing authority was 07 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 filed were called for from the department yielded not result. The repeated request in calling for the case filed proved futile.

6. 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 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.”

8. The very same discussion is made by the Commissioner (Appeals) in the other two impugned orders and being repetition is not reproduced again.

9.On going through the discussions made by the 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 the Reviewing Cell and apparently there is a 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.

10. We perused the review order in all these appeals. Surprisingly, in all the three review orders, the date of receiving the Order-in-Original by the Reviewing Cell is not mentioned. When Sub Section (3) of Section 129 D prescribes a time frame of three months from the date of receiving the orders passed by adjudicating authority, it is necessary and would be convenient to mention it in the review order.

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-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.

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).

13. In the result, the impugned orders are sustained. The appeals filed by the Department are dismissed.

(Pronounced in the open court on 27.03.2023)