2023 (6) TMI 318 - AT - Customs

Refund of SAD - delay in passing the review order by the reviewing authority - It is submitted that the date of communication of the Order-in-Original ought to have been taken by the Commissioner (Appeals) for computing the period of limitation of three months whereas, the Commissioner (Appeals) computed the limitation from the date of passing the Order-in-Original. HELD THAT - The learned AR has submitted that the Commissioner (Appeals) has erroneously dismissed the appeal as time barred. Similar matter had come up before the Tribunal wherein the Commissioner (Appeals) had taken the date of passing the Order-in-Original for computing the period of limitation. In the present case, in para 5 6 of the impugned order the Commissioner (Appeals) has discussed in detail that even after repeated requests the Department had not provided the details of the date on which the Order-in-Original was received by the reviewing authority. In similar matter, 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 the Tribunal had considered such appeal and dismissed holding 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. The Department has not been able to establish why they had not furnished the date of communication of order before the Commissioner (Appeals) - there are no grounds to take a different view in this case - appeal dismissed.

Summary

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

Issue 1: Calculation of limitation period
The Department filed an appeal against the order sanctioning the refund of SAD paid by the respondents. The appeal was dismissed by the Commissioner (Appeals) citing a delay in passing the review order by the reviewing authority. The Department argued that the limitation period should have been computed from the date of communication of the Order-in-Original, not from the date of passing the Order-in-Original. The Tribunal noted that the Commissioner (Appeals) had previously taken a similar stance in another case and dismissed the appeal due to lack of evidence regarding the date of receipt of the Order-in-Original by the reviewing authority. The Tribunal upheld the dismissal, as the Department failed to provide the necessary details, leading to the conclusion that there was a delay in passing the review orders.

Issue 2: Merits of the appeal
The respondent's counsel contended that the appeal did not survive on merits as the Department had issued a Show Cause Notice to recover the erroneously granted refund. Subsequently, the appellant applied to the Settlement Commission for resolving the issue of payment of the differential duty of SAD, which was initially rejected but later allowed after approaching the High Court. The appellant repaid the refund amount along with interest, rendering the appeal infructuous. The Tribunal considered these arguments and found that the refund amount in dispute had already been settled by the appellant, making the appeal devoid of merit. Consequently, the appeal was dismissed.

Separate Judgment:
The order was pronounced by Ms. Sulekha Beevi C. S., Member (Judicial) of the Appellate Tribunal CESTAT CHENNAI.