TMI Blog2021 (8) TMI 392X X X X Extracts X X X X X X X X Extracts X X X X ..... mount involved in the present case is only ₹ 50,000/- (Rupees Fifty thousand only). It is a penalty imposed under Section 117 of the Customs Act, 1962. In terms of Board‟s circular issued in F.No.390/Misc./163/2010-JC dated 17.08.2011 regarding the Government‟s litigation policy, it is stated that monetary limit for filing appeal by the department before CESTAT is ₹ 5 lakhs. Thereafter, the said monetary limit has been enhanced to ₹ 50 lakhs. The penalty is imposed under Section 117 for late filing of EGM - In the present case, the cause of action is prior to 31.01.2019. Further, there is no allegation of continued non-compliance to take recourse to penal provisions. The matter is remanded to the Commissioner (appeals) who shall decide the case on merits - The order of the Commissioner (Appeals) rejecting the appeal on the ground of being time barred is set aside - appeal disposed off. - CUSTOMS APPEAL No. 40210 of 2021 - FINAL ORDER No. 41737/2021 - Dated:- 6-8-2021 - Ms. Sulekha Beevi C.S., Member (Judicial) Shri L. Nandakumar, AC (AR) for the Appellant None for the Respondent ORDER The department is in appeal against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the OIO instead of date of communication. He submitted that the OIO was communicated to the department only on 09.01.2019. If computed from this date, the review order issued on 08.04.2019 is well within time. The Commissioner (Appeals) ought not to have dismissed the appeal on the ground of being time barred. He relied upon the decision of the Tribunal in the case of Final Order NO.40855/2016 dt. 18.04.2016 in the case of CC (Exports), Chennai Vs Kapoor Imaging Pvt.Ltd. 4. None appeared on behalf of the respondent even though notice was issued to them. It is seen from the impugned order that the respondent has not appeared before the Commissioner (Appeals) also. The matter was therefore taken up for disposal after hearing the Ld. A.R and perusal of records. 5. At the outset, it has to be stated the Commissioner (Appeals) has not considered merits of the case but has dismissed the appeal on the ground of being time barred. It is held by Commissioner (Appeals) that the review order issued on 08.04.2019 is beyond the time limit stipulated under Section 129D (3) of the Customs Act, 1962. For easy reference, the said provision is reproduced as under : 129D. Powers of Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e made within a period of three months from the date of communication of the decision or order of the adjudicating authority : Provided that the Board may, on sufficient cause being shown, extend the said period by another thirty days. As seen from the above, the review order has to be issued within 3 months from the date of communication of the decision or order of the adjudicating authority. In the present case, the order is passed by the adjudicating authority on 31.10.2018 and the date of dispatch of the order is 30.11.2018. The Commissioner (Appeals) has computed the period of 3 months from the date of dispatch i.e. 30.11.2018. As correctly argued by the Ld. A.R, the limitation prescribed in this Section has to be computed from the date of communication of the order. The last page of the OIO furnished along with the appeal paper book shows that the order was communicated to the department only on 09.01.2019. If calculated from this date, the review order issued on 08.04.2019 is well within 3 months. 6. Section 129D uses the word three months‟ and not ninety days . The period has to be calculated on the basis of actual calendar months. Section 3 (35) of Gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment has raised this contention as under : 17. Hence it is very clear from the above Board instructions that the department had to contest before higher forum for the three exception clauses given below : Adverse judgments relating to the following should be contested irrespective of the amount involved : a. Where the constitutional validity of the provisions of an Act or Rule is under challenge. b. Where notification/instruction/order or Circular has been held illegal or ultra vires. c. Classification and refunds issues with are of legal and / or recurring nature. 8. I do not find that the present case would fall within any of the criteria above. The constitutional validity of the provisions in the Customs Act or the Rule is not under challenge in the present case. If the appeals are to be filed overlooking the circulars prescribing the monetary limit by hanging on to such a vague grounds, the said circular would itself become meaningless and redundant. Such act of disobliging the Board‟s circular is not appreciable. The present issue as to whether the time limit of three months has to be calculated from the date of dispatch or from the da ..... X X X X Extracts X X X X X X X X Extracts X X X X
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