2014 (7) TMI 101 - AT - Customs

Condonation of delay - Commissioner(Appeals) rejected the review application on the count of time bar. - Levy of CVD - Benefit of Exemption Notification No.6/2006-CE dated 01.03.2006 - Classification under CTH 84186990 or under CTH 8434200 - dairy machine Icecream Candy - Held that - order of the Deputy Commissioner was accepted by the Department initially, however, based on audit objection by the internal audit department of Kolkata Customs House, a decision was taken to review the said order. In this regard we find from the provisions of Section 129D(2) of the Customs Act that Commissioner of Customs may of his own motion call for and examine the records of any proceedings in which the order has been passed by the subordinate officers for the purpose of satisfying himself as to legality or propriety of any such decision or order and may direct to apply to the Commissioner(Appeals) for the determination of such point arising out of the decision or order as may be specified by him in his order. As against this we notice that in the present case the Committee of Commissioners had examined the order passed by the Deputy Commissioner to be legal and proper and accepted the said order. We are of the opinion that once the legality and propriety of the order passed by the lower authorities has been examined and the same found to be legal and proper, no subsequent review order can be passed under Section 129D(2) of the Customs Act, 1962 - Decided against Revenue.

Summary

Issues:
1. Delay in filing the appeal before the Commissioner(Appeals).
2. Power of the Tribunal to condone the delay in filing the appeal.
3. Review of the order by the Review Committee.
4. Legality and propriety of the order passed by the lower authorities.
5. Functioning of the Review Committee once a decision is taken.

Analysis:

1. The case involved a show cause notice proposing a reclassification of a machine and demanding differential duty. The Deputy Commissioner initially dropped the proceedings, but the Revenue filed a review application which was rejected by the Ld. Commissioner(Appeals) on the ground of time bar. The appeal was filed before the Tribunal challenging this decision.

2. The Revenue argued for condonation of the delay in filing the appeal, citing various judgments to support their case. They relied on the Tribunal's power to condone delays as per a specific order which clarified the period within which appeals can be filed. They requested the Tribunal to decide on the appeal's merit after condoning the delay.

3. The Respondent contended that the limitation period for review of the order cannot be extended, referring to a decision by the Hon'ble High Court. They argued that even if the Tribunal had the power to condone the delay, the reasons provided by the Revenue were not sufficient. They emphasized that the review once conducted cannot be reopened or revised.

4. The Tribunal observed that the order of the Deputy Commissioner was accepted initially but reviewed later due to an audit objection. The Tribunal analyzed the provisions of the Customs Act regarding the Commissioner's authority to review orders. They concluded that once the legality and propriety of the order is confirmed, a subsequent review order cannot be passed.

5. Referring to previous cases, the Tribunal held that once a decision is taken not to file an appeal after reviewing, the Review Committee becomes functus officio. They emphasized that there is no provision to reopen or review the Review Committee's decision. Therefore, in the present case, where the Review Committee initially accepted the order, subsequent review was not permissible.

6. Based on the above analysis, the Tribunal dismissed the Revenue's appeal, stating that once the lower authority's order is found legal and proper, it cannot be reviewed later. The Tribunal upheld the decision of the Ld. Commissioner(Appeals) and concluded the case accordingly.