2023 (3) TMI 1082 - AT - Customs

Refund of SAD - Time Limitation - rejection of refund claim on the ground that the review order as required under Sub Section (2) of Section 129 D of Customs Act, 1962 has been passed beyond the period of three months as envisaged in Sub Section (3) of Section 129 D of Customs Act, 1962 - HELD THAT - As per Sub Section (2) of Section 129 D of Customs Act, 1962, the review authority has to examine the decision or order passed by adjudicating authority so as to satisfy the legality or propriety of such decision or order and has to pass a review order directing the department to prefer an appeal before the Commissioner (Appeals). Sub Section (3) of Section 129 D provides that every such order under Subsection (2) shall be made within a period of three months from the date of communication of the decision or order passed by the adjudicating authority. In both these appeals it is argued 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 as prescribed under Sub Section (3) of 129 D of Customs Act, 1962. From the Section as noticed above it can be seen that the period of three months has to be computed from the date of communication of the decision or order passed by the adjudicating authority. In both review order, 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 order passed by adjudicating authority, it is necessary and would be convenient to mention it in the review order - What prevented the department from producing it before the Commissioner (Appeals) even after repeated request. How did the seal appear for the purpose of filing an appeal before the Tribunal. The Bench raised these doubts to the learned AR as to what is the reason that the Commissioner (Appeals) was not able to take notice of such seal if it was present on the order while considering the appeal. The learned AR was not able to reply. It is opined that the seal seen affixed on the photo copy of the Orders-in-Original found in the annexure to the appeal filed by the department, purporting to show the date of receipt of the order in the review section, to be suspect - 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 Review Cell and apparently there was a delay in passing the review order. The Registry is directed to issue a copy of this order to the jurisdictional Principal Chief Commissioner who is directed to issue instructions to the Committee of Commissioners, so that appeals of this nature are filed with due seriousness and after satisfying themselves about the truth of the matter - the contention of the department that the orders were received by the reviewing authority only on 11.3.2010 / 16.3.2010 cannot be accepted - appeal dismissed.

Summary

Issues Involved:
1. Whether the review orders were passed within the stipulated period of three months as per Sub Section (3) of Section 129 D of the Customs Act, 1962.
2. Whether the Commissioner (Appeals) rightly dismissed the appeals as time-barred due to lack of evidence on the date of receipt of the Order-in-Original by the reviewing authority.

Issue 1: Timeliness of Review Orders

The Department filed appeals against the orders passed by the Commissioner (Appeals) who dismissed the appeals on the ground of limitation. The respondent M/s. VCR Timber Enterprises, Chennai, filed refund claims under Notification No.102/2007 C-Cus dated 14.09.2007, which were sanctioned by the refund sanctioning authority.

The learned AR argued that the review orders were passed within three months from the date of receipt of the Order-in-Original by the reviewing authority, as required under Sub Section (3) of Section 129 D of the Customs Act, 1962. The AR provided dates and seals to support the claim that the review orders were timely. However, the Commissioner (Appeals) computed the period from the date of the Order-in-Original, leading to a finding of delay.

Issue 2: Dismissal of Appeals as Time-Barred

The Commissioner (Appeals) noted that the Department did not provide evidence of the date on which the Order-in-Original was received by the reviewing authority, despite repeated requests. Consequently, the appeals were dismissed as time-barred. The Tribunal observed that the Commissioner (Appeals) made significant efforts to obtain the necessary evidence but received no cooperation from the Department.

The Tribunal found that the review orders did not mention the date of receipt of the Order-in-Original, which is crucial for determining compliance with the time frame prescribed under Sub Section (3) of Section 129 D. The Tribunal expressed doubts about the authenticity of the seals presented by the Department and emphasized the importance of transparency and promptness in administrative processes.

The Tribunal highlighted the serious implications of filing potentially forged or fabricated documents, referencing Section 193 of the Indian Penal Code regarding punishment for false evidence. The Tribunal directed the Principal Chief Commissioner to ensure that future appeals include the date of receipt of the Order-in-Original in the review orders and to handle appeals with due seriousness.

In conclusion, the Tribunal upheld the Commissioner (Appeals)'s orders, finding no grounds to interfere with the observations and findings. The appeals filed by the Department were dismissed.

(Pronounced in the open court on 22.03.2023)