TMI Blog2014 (7) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Customs may of his own motion call for and examine the records of any proceedings in which the order has been passed by the subordinate officers for the purpose of satisfying himself as to legality or propriety of any such decision or order and may direct to apply to the Commissioner(Appeals) for the determination of such point arising out of the decision or order as may be specified by him in his order. As against this we notice that in the present case the Committee of Commissioners had examined the order passed by the Deputy Commissioner to be legal and proper and accepted the said order. We are of the opinion that once the legality and propriety of the order passed by the lower authorities has been examined and the same foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal on receipt of the said review order. It is submitted that the Commissioner(Appeals) should have taken a more liberal view by condoning the delay and going into the merit of the case especially on the consideration that even though the Commissioner/Committee of Commissioners initially accepted the order of the Deputy Commissioner, but a decision was taken to file the Appeal consequent to receipt of audit objection. Similarly the delay in filing the Appeal after receipt of the said review order had occurred due to immense pressure of work. In this regard he referred to various judgements namely :- a) Collector, Land Acquisition Anr.vs.Mst.Katiji Ors - 1987 (28) ELT 185(SC) b) Municipal Corporation, Gwalior vs. Ram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w committee. In case there is any delay in this regard, the same can be condoned in exercise of powers under Section 35B(5), on being satisfied about sufficient cause for such delay and power to condone the delay would include the period availed under Section 35E(1) or (2) by the reviewing committee to decide about filing of the appeal. Accordingly he prays that the Appeal be decided on merit after condoning the delay occurred in filing Appeal before Ld.Commissioner(Appeals). 4. The Ld.Consultant appearing on behalf of the Respondent submitted that period of limitation provided under Section 129D(3) of the Customs Act, 1962, for review of the order cannot be enlarged in view of the decision of Hon ble High Court at Kolkata in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, based on audit objection by the internal audit department of Kolkata Customs House, a decision was taken to review the said order. In this regard we find from the provisions of Section 129D(2) of the Customs Act that Commissioner of Customs may of his own motion call for and examine the records of any proceedings in which the order has been passed by the subordinate officers for the purpose of satisfying himself as to legality or propriety of any such decision or order and may direct to apply to the Commissioner(Appeals) for the determination of such point arising out of the decision or order as may be specified by him in his order. As against this we notice that in the present case the Committee of Commissioners had examined the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e review Committee s decision. It is clear from the record that the Chief Commissioner has played a role in influencing the said commissioners to recall their order passed as Review Committee Members dropping the matter and to accept the Comissioner (Appeals) impugned order. It is very clear from the record that the Review Committee has been influenced by the Chief Commissioner and the order is not free from bias. There is no provision under Section 35B of the CE Act to reopen or review the Review Committees order. Therefore, the committee has become functus officio as held by Member (Judicial). I agree with his finding and the case law relied by him. The case law relied by Member (Technical) is clearly distinguishable and not applicable t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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