By TIOL News Service

MUMBAI, MAY 08, 2013: ANYONE who is accustomed with the working in a Commissionerate probably knows by now that any communication addressed to the Commissioner first lands at his PA's desk and then into the ‘dak' of the Commissioner who then marks it to the section concerned. Mind you, some of the addressees are so finicky that unless they have their ‘directions' engraved on the ‘tapal', the letter cannot leave his ‘teak table'. Even if he is on leave, the ‘communication' cannot leave!

The ‘tapal' then begins its mighty descent and finally reaches the section concerned where more often than not they try to show scant concern for what is engraved thereon.

But this does not usually happen in sections where matters are ‘time-bound'.

In this scenario, Revenue should be mighty pleased with this order for they can now probably buy more time.

The facts go thus -

+ Order-in-Original dated 01/05/2009 passed by the Deputy Commissioner was received in the review section on 20/05/2009. The Commissioner reviewed this order on 18/08/2009 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.

+ An O-in-A was passed on 04/05/2012 by the Commissioner of Customs (Appeals) dismissing the appeal filed by the Revenue on the ground of limitation. He observed that the review should have been undertaken within a period of three months from the date of the order [i.e 01/05/2009] and since the review was done on 18/08/2009 after a lapse of three months, the appeal is not sustainable.

Aggrieved, the Revenue is before the CESTAT.

It is submitted that as per the provisions of Section 129D(2) the Commissioner can review the order passed by any adjudicating authority subordinate to him; that 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; that the order was received in the review section of the Commissionerate on 20/05/2009 and which is to be taken as the date of communication of the order of the adjudicating authority; that since review was done on 18/08/2009, it is to be considered as done in time and, therefore, the order of the lower appellate authority is not legally sustainable. Extract of the register maintained in the review section for receipt and dispatch of the correspondence was also produced before the Bench.

The respondent submitted 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.

The Bench observed -

"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."

In fine, the Revenue appeal was allowed and the lower appellate authority was directed to consider the matter on merits and pass an order in accordance with law.

(See 2013-TIOL-701-CESTAT-MUM)