Custom, Excise & Service Tax Tribunal
Mumbai vs Forbes Marshall Acra Pvt. Ltd on 24 January, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
APPEAL NO: C/736/2012
APPLICATION NO: C/Stay-1845/2012
Cross-Objection No: C/CO-124/2012
[Arising out of Order-in-Appeal No: 263/MCH/DC/SVB/2012 dated 04/05/2012 passed by the Commissioner of Customs (Appeals), Mumbai.]
For approval and signature:
Honble Shri P.R. Chandrasekharan, Member (Technical)
Honble Shri Anil Choudhary, Member (Judicial)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
:
No
2.
Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
:
Yes
3.
Whether Their Lordships wish to see the fair copy of the Order?
:
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
:
Yes
Commissioner of Customs (Import)
Mumbai
Appellant
Vs
Forbes Marshall Acra Pvt. Ltd.
Respondent
Appearance:
Shri Navneet, Commissioner (AR) for the appellant Shri Mehul Jivani, C.A., for the respondent CORAM:
Honble Shri P.R. Chandrasekharan, Member (Technical) Honble Shri Anil Choudhary, Member (Judicial) Date of hearing: 24/01/2013 Date of decision: 24/01/2013 ORDER NO: ____________________________ Per: P.R. Chandrasekharan:
This appeal filed by the Revenue is against the Order-in-Appeal No: 263/MCH/DC/SVB/2012 dated 04/05/2012 passed by the Commissioner of Customs (Appeals), New Custom House, Mumbai. Vide the said order the Commissioner of Customs (Appeals) dismissed the appeal filed by the Revenue against the Order-in-Original passed by the adjudicating authority vide order No. 79/DC/SVB/KRC/09-10 dated 01/05/2009. The said order was received in the review section on 20/05/2009 which deals with review of orders passed by the authorities lower in rank than the Commissioner.
2. The Commissioner reviewed the order of the Dy. Commissioner on 18/08/2009 and was of the view that the order was not legal, correct and proper and accordingly an appeal was filed before the Commissioner (Appeals) on 02/09/2009 i.e., within the 30 days stipulated period for filing the appeal. However, the learned Commissioner (Appeals) observed that the review should have been undertaken within a period of three months from the date of the order and inasmuch as the review was done on 18/08/2009 and the three months has lapsed, the appeal is not sustainable. Hence Revenue is before us.
3. The Additional Commissioner (AR) submits that as per the provisions of Section 129D(2) the Commissioner can review the order passed by any adjudicating authority subordinate to him. As per sub-section (3) every order made under sub-section (2) reviewing the orders of the lower adjudicating authority shall be made within a period of 3 months from the date of communication of the decision or order of the adjudicating authority. In the present case the order was received in the review section of the Commissionerate on 20/05/2009. He has also submitted extracts of the register maintained in the review section for receipt and dispatch of the correspondence. As evident from the said extracts that the order of the adjudicating authority was received on 20/05/2009. Inasmuch as the review was done on 18/08/2009, the review was done in time and, therefore, the order of the lower appellate authority is not legally sustainable.
4. The learned counsel for the respondent says that the relevant date is date of receipt by the Commissioner himself and not by the concerned Section and, therefore, the date of the order should be presumed as the date of receipt of the order.
5. We have carefully considered the submissions made by both the sides. As envisaged under Section 129D(2), the order of the subordinate authority has to be reviewed by the Commissioner. Therefore, the date of receipt in the review section is the relevant date. The Commissioner does not receive the orders or correspondence addressed to him directly and it is the concerned section which receives the papers and put them up to the Commissioner. Therefore, the argument of the learned counsel that the Commissioner receives the order on the date of the order and that date is relevant is not acceptable. In the instant case the date of receipt of the order in the concerned section is 20/05/2009 and the review has been done on 18/08/2009 i.e. within a period of three months. Therefore, the findings of the lower appellate authority that the review has been done beyond the period of limitation prescribed in law is patently wrong.
6. Accordingly, we set aside the impugned order and allow the Revenues appeal and direct the lower appellate authority to consider the matter on merits and pass an order in accordance with law. Thus, the appeal is allowed by way of remand. The stay application as well as the cross-objection are also disposed of.
7. As the matter relates to special valuation, the Commissioner (Appeals) is directed to re-adjudicate the mater within a period of three months from the date of this order.
(Dictated in Court) (Anil Choudhary) Member (Judicial) (P.R. Chandrasekharan) Member (Technical) */as 2