2019 (5) TMI 242 - AT - Customs

Delay of 37 days in filing the ROM application - Limitation Act - HELD THAT - Even though, the application for condonation of delay for filing the ROM is dismissed, we will also deal with the alleged error raised in the ROM application. We find that the appellant has furnished necessary documents including the Chartered Accountant's certificate before the Refund Sanctioning Authority. The documents bear the acknowledgement of the department. The alleged error raised in ROM application is factually wrong. The ROA application is dismissed as not maintainable.

Summary

Issues:
Delay in filing ROM application, Condonation of delay, Error in final order, Maintainability of restoration of appeal application.

Delay in filing ROM application:
The department filed an application seeking rectification of mistake in the final order dated 24.04.2018, with a delay of 37 days. The department argued that the delay was due to the time taken for thorough analysis of the issue. The appellant's counsel opposed the condonation of delay, citing the absence of a provision in the Customs Act or CESTAT Procedure Rules for such condonation. The Tribunal, after considering various decisions, held that the delay in filing the ROM application cannot be condoned, and thus, the COD application was dismissed.

Error in final order:
The department contended that the Tribunal's observation in the final order, stating that the Chartered Accountant's certificate was not produced before the original authority, was erroneous. The appellant's counsel argued that all necessary documents, including the Chartered Accountant's certificate, were indeed submitted before the Refund Sanctioning Authority and the adjudicating authority. The Tribunal found that the alleged error raised in the ROM application was factually incorrect, as the documents bore the department's acknowledgment. Despite dismissing the condonation of delay application, the Tribunal acknowledged the error on the face of records but dismissed the ROM application due to the COD application dismissal.

Maintainability of restoration of appeal application:
The appellant's counsel argued that the application for restoration of appeal was not maintainable and was filed as an abundant caution in case the ROM application was disallowed. The Tribunal, after dismissing the COD application, also dismissed the ROA application as not maintainable, thereby concluding the matter.

This judgment addressed the issues of delay in filing the ROM application, the alleged error in the final order, and the maintainability of the restoration of appeal application, providing a detailed analysis of each aspect based on legal provisions and precedents.