2021 (12) TMI 1114 - AT - Customs

Refund claim of SAD - Time limitation - rejection of claim on the ground that appeals filed by the department are time-barred for the reason that the review order has been passed beyond the time limit of three months as stipulated under sec. 129(D)(3) of the Customs Act, 1962 - HELD THAT - There is much delay in passing the review order. As per sub-section (3) of section 129D of the Customs Act, 1962, review order has to be passed within three months from the date of receipt or the communication of the order passed by the adjudicating authority. The Commissioner (Appeals) has granted several chances to the department to furnish details with regard to the date of receipt of the order passed by the adjudicating authority. In fact, the date of order of adjudicating authority itself is not furnished in many orders. The department has failed to comply with the directions passed by the Commissioner (Appeals) and thereupon he had no other way but to dispose of the appeals on the ground of limitation. However, the Commissioner (Appeals) instead of dismissing the appeals on limitation has given a further chance to the department to resubmit the appeals after obtaining the details with regard to the date of receipt of order by the reviewing authority. It is explicit that the department has not been able to furnish any details as to the date of receipt of order by the reviewing authority. This Tribunal had also granted several adjournments to the department to obtain these details. Today, when the matter came up for hearing, ld. AR has not been able to place any such details with regard to the date of receipt of the order by the reviewing authority. There are no hesitation to conclude that the review order passed by the department is beyond the time-limit prescribed under sub-section (3) of section 129D of the Customs Act, 1962 and therefore the appeals filed before the Commissioner (Appeals) are time-barred - appeal dismissed.

Summary

Issues Involved:
1. Refund claim of Special Additional Duty (SAD) under Notification No. 102/2007-Cus.
2. Time-barred appeals filed by the department.
3. Computation of time-limit for review orders under Section 129D(3) of the Customs Act, 1962.
4. Adequacy of documentary evidence provided by the department.

Detailed Analysis:

1. Refund Claim of Special Additional Duty (SAD) under Notification No. 102/2007-Cus:
The respondents had filed a refund claim for Special Additional Duty (SAD) in accordance with Notification No. 102/2007-Cus dated 14.09.2007, as amended by Notification No. 93/2008 dated 01.08.2008. The original authority allowed the refund claim after due process of law.

2. Time-barred Appeals Filed by the Department:
The department filed appeals against the original authority's order before the Commissioner (Appeals). The Commissioner (Appeals) observed that the appeals were time-barred because the review order was passed beyond the three-month time limit stipulated under Section 129D(3) of the Customs Act, 1962. Consequently, the Commissioner (Appeals) ordered the return of the appeals to the department for resubmission with documentary evidence establishing the date of receipt of the order by the reviewing authority and the actual date of passing the review order.

3. Computation of Time-limit for Review Orders under Section 129D(3) of the Customs Act, 1962:
The department argued that the Commissioner (Appeals) erroneously computed the time limit from the date of the order's issue or hearing rather than from the date of receipt by the reviewing authority. According to Section 129D(3) of the Customs Act, 1962, the time limit for reviewing the order is three months from the date of communication or receipt of the decision or order of the adjudicating authority. The Commissioner (Appeals) had considered the date of hearing, dispatch, and other dates, concluding that the review order was passed beyond the permissible time frame.

4. Adequacy of Documentary Evidence Provided by the Department:
The Commissioner (Appeals) noted several discrepancies in the documentation provided by the department, such as missing dates of passing or issuing orders, unexplained delays, and lack of indication of the date of receipt of the order by the review cell. Despite multiple opportunities, the department failed to furnish the necessary details. The Commissioner (Appeals) criticized the department for its inadequate response and documentation, which led to the conclusion that the appeals were time-barred.

The Tribunal also granted several adjournments to the department to obtain the required details. However, during the hearing, the department's representative could not provide any such details. Consequently, the Tribunal concluded that the review order was passed beyond the time limit prescribed under Section 129D(3) of the Customs Act, 1962, rendering the appeals time-barred.

Conclusion:
The appeals filed by the department were dismissed as time-barred due to the failure to provide adequate documentary evidence and the inability to demonstrate that the review orders were passed within the stipulated time limit. The cross-objections filed by the respondents were also disposed of accordingly.