2022 (3) TMI 202 - AT - Customs

Maintainability of appeal - applicability of time limitation - whether the 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 section 129(D)(3) of the Customs Act, 1962? - refund of SAD - 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. From the discussions made by the Commissioner (Appeals), 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 - 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 - decided against Revenue.

Summary

Issues Involved:
1. Refund claim of Special Additional Duty (SAD) under Notification No. 102/2007-Cus as amended by Notification No. 93/2008.
2. Time-barred appeals filed by the department.
3. Compliance with section 129D(3) of the Customs Act, 1962 regarding the time limit for review orders.
4. Insufficient documentary evidence provided by the department.

Issue-wise Detailed Analysis:

1. Refund Claim of SAD:
The respondents filed a refund claim of Special Additional Duty (SAD) in accordance with Notification No. 102/2007-Cus dated 14.9.2007, amended by Notification No. 93/2008 dated 1.8.2008. The original authority approved the refund claim after following the due process of law. The department, dissatisfied with this decision, filed appeals before the Commissioner (Appeals).

2. Time-barred Appeals Filed by the Department:
The Commissioner (Appeals) observed that the appeals filed by the department were time-barred because the review order was passed beyond the stipulated three months as per section 129D(3) of the Customs Act, 1962. The Commissioner (Appeals) directed the department to resubmit the appeals with documentary evidence establishing the date on which the review authority received the order from the adjudicating authority and the actual date of passing the review order.

3. Compliance with Section 129D(3) of the Customs Act, 1962:
Section 129D(3) of the Customs Act, 1962 prescribes a three-month time limit for the reviewing authority to pass a review order from the date of receipt of the decision or order of the adjudicating authority. The department argued that the Commissioner (Appeals) erred by considering the date of hearing and dispatch of the order instead of the date of receipt by the reviewing authority. The Tribunal noted that the department failed to provide details regarding the date of receipt of the order by the reviewing authority, leading to the conclusion that the review order was passed beyond the prescribed time limit.

4. Insufficient Documentary Evidence Provided by the Department:
The Commissioner (Appeals) highlighted several discrepancies in the documentation provided by the department, such as the absence of the date of passing or issuance of the order in many cases, unexplained delays, and lack of mention of the date of receipt of the order by the review cell. The department's failure to comply with the directions to furnish these details resulted in the appeals being considered time-barred. The Commissioner (Appeals) expressed dissatisfaction with the department's handling of the appeals, noting that the absence of documentary proof led to avoidable perplexity and a burden on the forum.

Conclusion:
The Tribunal, after granting several adjournments to the department to obtain the necessary details, found that the department still failed to provide the required information. 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. The Tribunal dismissed the appeals filed by the Revenue as being without merit and also disposed of the cross-objection filed by M/s. Thermoking India P. Ltd.

Final Decision:
The appeals filed by the Revenue were dismissed, and the cross-objection filed by M/s. Thermoking India P. Ltd. was also disposed of. The decision was pronounced in open court on 2.3.2022.