The Chennai bench of the Customs, Excise & Service Tax Appellate Tribunal(CESTAT) dismissed the appeal filed by the Customs Department against the order which rejected the time-barred appeal of the Customs Department. The Department failed to prove the delay in receiving an order from the review cell.
The Customs department filed an appeal against the order passed by the Commissioner (Appeals) who dismissed the appeal filed by the department as being time-barred. Smt. O.M. Reena, ADC (AR) appeared and argued for the appellant department.
It was submitted that the Order in Original sanctioning refund to M/s. HCL Info Systems, the respondent was signed on 26.2.2010. The same was issued only on 4.3.2010. The Commissioner (Appeals) computed the period of passing of the review order from the date of issue of the order (4.3.2010) and held that there is a delay of 8 days in passing the review order. The Commissioner (Appeals) has thus erroneously dismissed the appeal filed by the department.
It was argued that the seal/stamp impressed on the first page of the Order in Original by the Review Cell would show that the Order in Original was received by the Review Cell only on 11.3.2010. Without taking note of this date, which is the date of communication of the order to the Review Cell, the Commissioner (Appeals) has dismissed the appeal observing that there is a delay of 8 days in passing the review order.
Ms Pallavi Ganesh appeared for the respondent and argued that the Order in Original issued on 4.3.2010 has been received by the Review Cell only on 11.3.2010 is unbelievable and cannot be accepted. Both these offices are stationed in the very same building and it could be served within the next day itself.
It was submitted that even after repeated reminders, the department has not furnished the date on which the Order in Original was received by the Review Cell. It is also submitted that similar matters were considered by the Tribunal vide Final Order No. 40183 and 40184/2023 dated 23.3.2023 in which the Tribunal had held that there is no ground to disbelieve the observations made by the Commissioner (Appeals) about the delay in passing the review order.
It was viewed that even after much effort, the Commissioner (Appeals) could not get details from the department as to the date of receipt of the Order in Original by the Review Cell. If the Department knew the date of receipt of the Order in Original by the Review Cell as being 11.3.2010, they ought to have furnished such evidence before the Commissioner (Appeals) itself.
A two-member bench of Ms Sulekha Beevi C.S., Member (Judicial) and Shri M. Ajit Kumar, Member (Technical) observed that both review orders, the date of receiving the Order-in-Original by the Reviewing Cell is not mentioned. When Sub Section (3) of Section 129 D prescribes a time frame of three months from the date of receiving the order passed by the adjudicating authority, it is necessary and would be convenient to mention it in the review order.
“no evidence was placed before him as to the date on which the Orders-in-Original was received by the reviewing authority, despite repeated requests. Revenues actions should be beyond suspicion. Hence the strong inference that can be drawn is that there was no evidence available to establish the date on which the order-in-original was received by the Review Cell and there was a delay in passing the review order.”, the Tribunal viewed.
The CESTAT held that the appeal filed by the department was without merits and dismissed the appeal.
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