Commissioner Of Customs (Export), Jnch ... vs Mr. Nitin Pherwani

IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. IV

APPEAL NO. C/661/11  MUM

(Arising out of Order-in-Original No. 43/2011 dated 30.04.2011 passed by the Commissioner of Customs (Export), JNCH Nhavasheva.)

For approval and signature: Honble Shri Anil Choudhary, Member (Judicial)

=====================================================

1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy : Seen of the order?

4. Whether order is to be circulated to the Departmental : Yes authorities? =====================================================

Commissioner of Customs (Export), JNCH Nhavasheva

: Appellant Versus

Mr. Nitin Pherwani Mr. Suhas Prabhu Mr. Pankay Rawal : Respondent

Appearance Shri M.K. Mall, Asst. Commr. (A.R.) : For Appellant Shri J.S. Sanghvi, Advocate : For Respondents

CORAM: HONBLE SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL)

Date of Hearing : 05.06.2015 Date of Decision: 05.06.2015

ORDER NO.......................................................

Per: Anil Choudhary:

The Revenue have filed this appeal being aggrieved with the Order-in-Original No. 43/2011 dated 30.04.2011 passed by the Commissioner of Customs (Export), JNCH Nhavasheva..

2. The Counsel for the respondent Mr. J.S. Sanghvi raises a preliminary objection that the appeal is time barred and/or in violation of the provisions of Section 129D(3) of the Customs Act, which provides every order under sub Section 1 or sub Section 2, as the case may be, shall be made within a period of 3 months from the date of communication of the decision or order of the adjudicating authority. Admittedly the impugned order was received in the office of the Customs Authority on 12/5/2011 [duly confirmed by report dated 03.06.2015 by the Deputy Commissioner of Customs Vide letter F. No. S/26-Misc.-01/2013-14/Review/TCU(X)]. The review order have been passed and signed on 6/9/2011. The period of 3 months from the date of receipt of order by the Custom Authorities expired on 10.08.2011. Thus the review order under Section 129D(3) of the Act is not in order, as permitted by law and accordingly no appeal can be filed by the Revenue in absence of a legal review order. The purported order of review dated 6/9/11 is non-est in the eyes of law. The Counsel prays for dismissal of the appeal as Tribunal cannot condone the delay in passing the order under sub Section 3 of Section 129D (review order), there being no provision for the same. The Tribunal is empowered to condone the delay in filing appeal, on the reasonable cause being shown, in filing the appeal, in case the review order having been passed within the time permitted under the Act.

3. The learned A.R. for the Revenue could not give an answer to the objection raised by the Counsel for the respondent.

4. Heard the parties.

5. Having considered the rival contentions, I hold that this Tribunal is not empowered to condone the delay in passing of review order, as provided under the provisions of sub Section 3 or Section 129D of the Customs Act. Thus I hold that the appeal is time barred and not entertainable by this Tribunal in absence of a legal review order under sub Section 3 of Section 129D of the Act. Thus, the appeal of Revenue is dismissed.

(Pronounced in open Court)

(Anil Choudhary)

Member (Judicial)

Sp

3