Custom, Excise & Service Tax Tribunal
Cc, Icd, Tkd, New Delhi vs M/S.Shakumbari Overseas on 11 March, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
DIVISION BENCH
Court No.2
Date of hearing/Decision: 11.03.2014
C/COD/61648/2013 & C/Stay/61647/2013
In Appeal No.C/60532/2013-Cus
(Arising out of OIA No.CC(A)/Cus/318/2013 dated 27.5.2013 passed by CC(Appeals), New Delhi)
CC, ICD, TKD, New Delhi Appellant
Vs.
M/s.Shakumbari Overseas Respondent
Present for the Appellant: Ms.Ranjana Jha, JCDR Present for the Respondent: Sh.A.S.Hasija, Advocate Coram: Honble Mr.D.N.Panda, Judicial Member Honble Mr.Manmohan Singh, Technical Member FINAL ORDER No.51157/2014 PER: D.N.PANDA This matter was heard previously. At the request of Revenue that was adjourned for further hearing today.
2. The issue arises in this appeal is whether decision taken under section 129D (3) of Customs Act, 1962 (hereinafter referred to as The Act) beyond a period of three months from the date of communication of decision or order of adjudicating authority is barred from seeking appeal remedy in terms of section 129A (3) of the Act. While an assessee is given a right to file appeal within three months of the date of communication of impugned order, Revenue has been conferred with the right to file application to the Tribunal under provision of sub-section (3) of section 129D of the Act within a month from the date of communication of the order of the Committee of Chief Commissioners. The application so filed is treated as an appeal under the law. This right of appeal of Revenue is governed by provision of section 129A of the Act. Time limit is prescribed by sub-section (3) of section 129D of the Act to complete decision making process by the Committee of Chief Commissioners to seek appeal remedy. Once decision is taken by the Committee within three months of date of communication of order sought to be appealed, appeal is filed by the Revenue within a month thereof. If there is a delay in filing the appeal after decision of communicated under section 129D (1) duly with the time prescribed by section 129D(3) of the Act, Tribunal is vested power to consider condonation of such delay in filing the appeal.
3. Revenue contends in this appeal that irrespective of period allowed for decision by Review Committee under section 129D(3) of the Act, delay if any, in decision making resulting in delayed filing the appeal shall be condonable by Tribunal. Reverse is the contention of the Respondent.
4. We have examined section 129D(4) of the Act. That sub section has prescribed that either adjudicating authority or any officer of Customs authorised in this behalf by the Commissioner of Customs may file an application before Tribunal within a month from the date of communication of the order by the Committee of Chief Commissioners to file appeal. According to the law, Revenue gets four months time to file appeal. The order sought to be appealed was communicated to the Commissioner of Customs on 4.6.2013. Revenue submitted that Review Committee reviewed the impugned order and signed the same on 29.11.2013. Thereafter Revenue filed appeal on 29.11.2013. According to the limitation prescribed last date for filing appeal was 03.10.2013.
5. Above chorological event shows that Review Committee had not taken decision to seek appeal for nearly five months of communication of the order sought to be appealed. That handicaps Revenue to seek condonation of delay made in decision making under section 129D(1) read with section 129D(3) of the Act by the Committee.
6. Revenue contends that para 13 of Apex Court judgement in the case of Thakker Shipping P.Ltd. vs. CC-2012 (285) ELT 321 (SC) takes care of Revenues case to seek appeal remedy. Revenue also rely on decision of Tribunal in the case of Kap Cones-2012 (286) ELT 135 (Tri.-Del.). Delay in the present may be condoned.
7. Citation of Revenue in case of Thakker Shipping was considered by us. In that case, it appears that Revenues appeal was filed after the decision was taken by the Committee under sub-section (1B) of Section 129A of the Act duly. Accordingly delay was condonable taking shelter under section 129A(3) and section 129A(4) read with section 129D(4) of the Act.
8. Without burdening the order further, in view of aforesaid chronology of events, appeal of Revenue calls for dismissal of its MA(COD), stay application and appeal. It is ordered accordingly.
(Dictated & pronounced in the open court)
(MANMOHAN SINGH) (D.N.PANDA)
TECHNICAL MEMBER JUDICIAL MEMBER
mk
4
Appeal No.C/COD/616648/13
C/Stay/61647/13
C/60532/13