2023 (5) TMI 820 - AT - Customs

Time limitation for filing appeal - Review Order passed only on 27.04.2010 which is beyond the period of three months as required under Sub Section (3) of Section 129D of Customs Act, 1962 - Refund of SAD - HELD THAT - There is absolutely no evidence adduced as to show the date on which the order was received by the Reviewing authority. The Commissioner (Appeals) has discussed in the impugned order that even after repeated requests the Department did not furnish the date on which the original order was received by the Reviewing Authority. The very same facts and issue came up for consideration before this Tribunal in COMMISSIONER OF CUSTOMS (EXPORTS) , CHENNAI VERSUS M/S. NAGAPPA EXPORTS, M/S. AMARA RAJA BATTERIES LTD. AND M/S. NORITSU KOKI CO. LTD. 2023 (3) TMI 1216 - CESTAT CHENNAI , in which it was observed that As there is no evidence to substantiate the contention of the Department that the Order-in-Original was received on such dates by the Review Cell and as there is no reason to dis-believe the findings of the Commissioner (Appeals) that there was no evidence as to the date on which Order-in-Original was received by the Reviewing Authority, the strong inference that can be drawn is that there is a delay in passing the review orders in these appeals. There are no ground to take a different view. The impugned order sustained. The appeal filed by the Department is dismissed.

Summary

Issues:
The appeal filed by the Department against the order passed by the Commissioner (Appeals) who dismissed the appeal on the ground of limitation.

Issue 1: Time Barred Appeal

The respondent filed a refund claim for refund of special additional duty. The original authority sanctioned the refund claim, but the Review Authority passed the review order beyond the stipulated time of three months as required under Section 129D of Customs Act, 1962. The appeal was dismissed as time-barred without considering the merits of the case.

Issue 2: Lack of Evidence

The Department failed to provide evidence regarding the date on which the order was received by the Reviewing Authority. The Commissioner (Appeals) correctly dismissed the appeal as there was a delay in passing the review order and the Department did not respond to requests for the date of receipt by the Reviewing Authority.

Key Points:

- The Department argued that the order was received by the reviewing authority after the stipulated time, but failed to provide evidence to support this claim.
- The Commissioner (Appeals) highlighted the importance of following the procedures laid down under Section 129D of the Customs Act, emphasizing the time limits for passing review orders and filing appeals.
- The Tribunal observed that there was no evidence to substantiate the Department's claim regarding the date of receipt by the Review Cell, leading to the inference of a delay in passing the review orders.
- The Tribunal upheld the Commissioner (Appeals)' findings and dismissed the appeal filed by the Department, as there was no ground to take a different view based on the evidence presented.

Final Decision:

The Tribunal sustained the impugned order, dismissing the appeal filed by the Department and disposing of the cross objections accordingly. The decision was pronounced in open court on 26.04.2023.