2023 (3) TMI 1287 - AT - Customs

Refund of 4% CVD - time limitation - main argument of Department is 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 - 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. It cannot be understood why the Department failed to point out the date seal of the Reviewing Authority before the Commissioner (Appeals). The very same facts and issue came up for consideration before the Tribunal in other appeals filed by the Department - The Tribunal in M/S. VCR TIMBER ENTERPRISES AND M/S. MEHNDIPUR BALAJI IMPEX (P) LTD. 2023 (3) TMI 1082 - CESTAT CHENNAI held that we have no reason to disbelieve the Commissioner (Appeals) that no evidence was placed before him as to the date on which the Orders-in-Original was received by the reviewing authority in spite of repeated requests. Revenues actions should be beyond suspicion. Hence 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 contention of the Department that the order was received by the reviewing authority only on 23.03.2010 cannot be accepted - there are no grounds to interfere with the observations and findings of the Commissioner (Appeals). The appeal filed by the Department is dismissed.

Summary

Issues:
The issue involves the Department appealing against the Commissioner (Appeals) order dismissing the appeal on the ground of limitation.

Issue 1: Calculation of Review Order Period
The Department argued that the review order was passed within the required three months from the date the Order-in-Original was received by the Review Cell. The Department contended that the Commissioner (Appeals) erroneously calculated the period from the date of passing the Order-in-Original, instead of the date of receiving it by the reviewing authority.

Issue 2: Lack of Evidence on Receipt Date
The Commissioner (Appeals) noted that the Department failed to provide evidence on the date the Order-in-Original was received by the Reviewing Authority. Despite repeated requests for original case files, the Department did not respond, leading to a lack of evidence to establish the receipt date.

Issue 3: Tribunal's Observations
The Tribunal observed that there was no mention of the date of receiving the Order-in-Original by the Reviewing Cell in the review orders. The Tribunal questioned why the Department did not produce the seal affixed on the Order-in-Original before the Commissioner (Appeals) and raised doubts regarding the authenticity of the seal.

Issue 4: Tribunal's Caution and Direction
The Tribunal cautioned against interference in the administration of justice and highlighted the seriousness of filing forged or fabricated documents. It directed the Registry to issue a copy of the order to the jurisdictional Principal Chief Commissioner and instructed to include the date of receiving the Order-in-Original by the review cell in the Review Order itself to avoid such incidents in the future.

Conclusion:
The Tribunal upheld the Commissioner (Appeals) decision, dismissing the Department's appeal as it found no grounds to interfere with the observations and findings regarding the limitation issue. The impugned orders were sustained, and the appeal filed by the Department was dismissed.