Appeal Filed After 3 Months is Barred by Limitation: CESTAT upholds Refund of SAD to Indian Oil Corporation [Read Order]

The Delhi bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) upheld the refund of Special Additional Duty (SAD) to Indian Oil Corporation aAppeal Filed After 3 Months is Barred by Limitation: CESTAT upholds Refund of SAD to Indian Oil Corporationnd held that appeal filed by the department after 3 months is barred by limitation.

The Customs Department challenged the order passed by the Commissioner (Appeals) who dismissed the appeal filed by the Department on the ground of limitation. The respondent filed the refund claim for a refund of 4% SAD in terms of Notification No.102/2007-Cus dated 14.09.2007. After due process of law, the original authority sanctioned the refund claim. The Department had filed the appeal before the Commissioner (Appeals). 

The Commissioner (Appeals) dismissed the appeal as time-barred and held that though the order was passed by the refund sanctioning authority on 11.12.2009 and the same was despatched on 18.01.2010, the Review Authority passed Review Order only on 27.04.2010 which is beyond the period of three months as required under Sub Section (3) of Section 129D of Customs Act, 1962. 

Ms Anandalakshmi Ganeshram appeared for the Department and submitted that the order was received by the reviewing authority only on 04.05.2010.  Mr. M.N. Bharathi appeared for the respondent and stated that the Commissioner (Appeals) has discussed the reasons for dismissing the appeal filed by the Department as time-barred and the Department had not produced any evidence to show the date on which the Reviewing Authority received the Order-in-Original.

It was stated that the Reviewing Authority had received the order only on 29.01.2010 and that therefore the review order passed on 27.04.2010 was well within time.

There was no evidence adduced to show the date on which the order was received by the Reviewing authority.  The Commissioner (Appeals) has discussed in the impugned order that even after repeated requests the Department did not furnish the date on which the original order was received by the Reviewing Authority. 

It was settled that the review order should be passed within three months from the date of communication of the Order-In-Original and the appeal under Section 129D should be made within a further period of one month from the date of communication of the review order. 

In the absence of evidence, the two-member bench comprising Ms Sulekha Beevi C S,(Judicial) and Mr M  Ajit Kumar,(Technical) upheld the impugned order and dismissed the appeal filed by the department.

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