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TMI Blog2023 (3) TMI 1216X X X X Extracts X X X X X X X X Extracts X X X X ..... vailable to establish as to the date on which the Order-in-Original was received by the Reviewing Cell and apparently there is a delay in passing the review order. The Commissioner (Appeals) has taken all effort to call for the files to check the date of receiving the order by the Reviewing Authority so as to avoid dismissing the appeals as time barred. His efforts did not see any result and had to dismiss the appeals as time barred. In all the three review orders, 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 orders passed by adjudicating authority, it is necessary and would be convenient to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent ORDER The issue involved in all these appeals being the same, the appeals were heard together and are disposed of by this common order. The appeals are filed by the Department against the order passed by the Commissioner (Appeals) who dismissed the appeals of the Department on the grounds of limitation. 2. On behalf of the Department, it is submitted that the Commissioner (Appeals) has dismissed the appeals on the grounds of limitation holding that the review order as required under Sub Section (2) of Section 129D of Customs Act, 1962 has been passed beyond the period of three months as envisaged in Sub Section (3) of Section 129D of Customs Act, 1962. It is argued by the Department that the Commissioner (Appeals) ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions arrived by the Commissioner (Appeals) to hold that the appeal filed by the Department is time barred is not legal and proper. The learned AR prayed that the appeals may be allowed. 4. None appeared for the respondent in C/40744/2013 and C/40726/2013. In C/40773/2013, the learned counsel Ms. M. Pooja appeared and argued for the respondent. She adverted to the discussions made by the Commissioner (Appeals) in paragraphs 4, 5 and 6 of the impugned order and submitted that the Commissioner (Appeals) had made reasonable efforts to obtain the original case files to check the date of receiving the order by the Reviewing Authority. The Department was not able to provide any evidence as to the date on which the Reviewing Authority has receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct [such authority or any officer of Customs subordinate to him] to apply to the [Commissioner (Appeals)] for the determination of such points arising out of the decision or order as may be specified by the [Principal Commissioner of Customs or Commissioner of Customs] in his order. . . . (3) Every order under sub-section (1) or sub-section (2), as the case may be, shall be made within a period of three months from the date of communication of the decision or order of the adjudicating authority. 7. It is argued by the Department that when the period of three months is compu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay was noticed based on the facts and figures available as such from the appeal papers filed before me by the department. In order to find out whether actually any delay exist in passing the review order, the original case filed were called for from the department yielded not result. The repeated request in calling for the case filed proved futile. 6. The question of limitation was decided by me on the above basis with the available dates, which appears latest among the date of passing of the order dispatch date of the order or the date on which the job number / O-In-O number was generated. I am totally not satisfied the way the department responds for the appeal filed by them. The way they filed the appeal and treated the same mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew order. 11. We do not understand what prevented the Department from submitting before the Commissioner (Appeals) that the Order-in-Original was received by the Review Cell on the respective dates on which they have stated in the grounds of appeal. 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. 12. As discussed we cannot accept the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X
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