No evidence as to what order was received by Reviewing Authority: CESTAT allows refund of CVD [Read Order]

The Chennai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), allowed the refund of Countervailing Duty (CVD) as there was no evidence as to what order was received by Reviewing Authority.

The respondent, Ms. Mehra Eyetech Pvt. Ltd., filed claim for refund of 4% CVD in respect of various Bills of Entry as per Notification No.102/2007-Cus dated 14.09.2007 as amended. After due process of law, the original authority sanctioned the refund. Against this order of sanctioning the refund, Department filed appeal before the Commissioner (Appeals) and vide order impugned herein the Commissioner (Appeals) and dismissed the appeal of the Department as time barred. Hence the Department is before the Tribunal.

G. Anandalakshmi appeared and argued on behalf of the Department. The Counsel argued that the Order was received by the Review Cell only on 23.03.2010. The review order was passed on 22.06.2010. When computed from the date of receiving the Order-in-Original by the Review Cell, the review order has been passed well within three months. However, the Commissioner (Appeals) has erroneously calculated the period of three months from the date of passing the Order-in-Original.

As per Sub Section (2) of Section 129 D of Customs Act, 1962, the review authority has to examine the decision or order passed by adjudicating authority so as to satisfy the legality or propriety of such decision or order and has to pass a review order directing the department to prefer an appeal before the Commissioner (Appeals).

Sub Section (3) of Section 129 D provides that every such order under Subsection (2) shall be made within a period of three months from the date of communication of the decision or order passed by the adjudicating authority.

The Coram consisting of Suekha Beevi CS, Judicial Member and M Ajit Kumar, Technical Member observed that “We find the facts and issue for consideration in this appeal also to be the same. We cannot accept the contention of the Department that the order was received by the reviewing authority only on 23.03.2010. We find no grounds to interfere with the observations and findings of the Commissioner (Appeals).”

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