Commissioner Of Customs (Import), ... vs M/S Bekaert Carding Solutions Pvt. Ltd

(Arising out of Order-in-Appeal No. 188/MCH/DC/SVB/2012 dated 14.3.2012 passed by the Commissioner of Customs (Appeals), Mumbai).

For approval and signature:

Honble Shri Anil Choudhary, Member (Judicial) Honble Shri P.S. Pruthi, Member (Technical)

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

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 (Import), Mumbai Appellant

Vs.

M/s Bekaert Carding Solutions Pvt. Ltd. Respondent

Appearance: Shri A.K. Singh, Addl. Commissioner (AR) for Appellant

Shri Mayur Shroff, Advocate for Respondent

CORAM: SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) SHRI P.S. PRUTHI, MEMBER (TECHNICAL)

Date of Hearing: 13.03.2015

Date of Decision: 13.03.2015

ORDER NO.

Per: Anil Choudhary

The present appeal has been filed by the Revenue against Order-in-Appeal No. 188/MCH/DC/SVB/2012 dated 14.3.2012 passed by the Commissioner of Customs (Appeals), Mumbai.

2. The impugned order passed by the Commissioner (Appeals) dated 14.3.2012 rejecting the appeal of the Revenue on the ground of limitation observing as follows: -

It is verified that the review of Order-in-Original No. RC/DC/03/33/2011 has been passed on 16.6.2009 by Commissioner (Import), NCH directing DC/Commissioner of Customs, Gr.VC, Mumbai to file an appeal against Order-in-Original No. 818/DC/SVB/KRC/2008/09 dated 6.3.2009 under sub-section (2) of the Section 129(D) of Customs Act, 1962 before the Commissioner of Customs (Appeals), NCH, Mumbai.

It is seen that the impugned Order-in-Original dated 6.3.2009, has been reviewed vide Order No. RC/DC?03/33/2009 passed on 16.6.2009 which is beyond the permissible limit of 90 days i.e. (approx 105 days) and similarly the said appeal filed against the review order dated 16.6.2009 is filed before the appellate authority on 31.7.2009, which is also beyond the stipulated period of 30 days under Section 129(D) and is thus hit by the bar of limitations.

I have gone through records submitted therein and subsequently findings of the case. It is seen that the review of order against the impugned Order-in-Original dated 6.3.2009 whas been reviewed on 16.6.2009which is beyond the permissible limit of 90 days.

The Revenue deptt. was asked to clarify the respondents point of view vide this office letter dated 25.1.2012 & 10.2.2012. No clarification has been received till date, hence, the case is taken up for decision on merits.

It is observed that since the review order was not passed by the Commissioner of Customs (Import) under sub-section (2) of the Section 129D within three months from the date of communication of the impugned Order-in-Original passed by the lower authority, the application filed before the appellate authority is not maintainable, hence the Revenues application is rejected.

Accordingly, the appeal was dismissed.

3. The learned AR appearing for the Revenue reiterates the grounds of appeal filed by the Revenue and prays for allowing the appeal.

4. The learned Counsel for the respondent-assessee supports the impugned order and they also filed a written submission praying for dismissal of Revenues appeal. He further points out that it is admitted that delay of 105 days is beyond the powers of the Commissioner (Appeals).He can condone the delay if the appeal is filed beyond 60 days but within 90 days limit and accordingly, the impugned order is correct and requires no interference by this Tribunal. The respondent relies on the ruling in the case of Commissioner of Customs (Prev.), Kolkata Vs. Narendera Kumar Taparia  2008 (225) ELT 141 (Tri-Kol), wherein it was held that since the time limit of three months have been prescribed under Section 129A(3) for filing the appeal. It incumbent on the Committee of Commissioners to form its opinion under Section 129A(2) well before the time limit of three months. In the facts of the present case, as the opinion have been formed after a period of three months and such delay on part of the Committee of Commissioners cannot be condoned by the Commissioner (Appeals) and as such, the impugned order is correct and the appeal is fit to be set aside.

5. Having considered the rival contentions, we find that in view of the powers conferred on the Commissioner (Appeals) under the Customs Act, 1962, the Commissioner (Appeals) cannot condone the delay beyond a period of 90 days from the date of the impugned order. Accordingly, the appeal filed by the Revenue is dismissed.

(Dictated and pronounced in Court)

(P.S. Pruthi) (Anil Choudhary) Member (Technical) Member (Judicial)

Sinha

1