2013 (9) TMI 217 - AT - Customs

Tribunal Invalidates Review Order Due to Time Limitation, Dismisses Appeal

COMMISSIONER OF CENTRAL EXCISE, DELHI-III Versus BHARAT CEREALS PVT. LTD.

The Tribunal held that the review order issued beyond the limitation period under Section 129D(3) of the Customs Act was invalid and ineffective, citing a ... Condonation of delay - Exported Goods of Inferior Quality - Confiscation of Goods - Penalty u/s 114 - Period of Limitation - The respondent exported a consignment declared to be of Basmati rice of declared value - The goods on examination were found to be inferior quality of rice other than basmati whose export was not permitted - Held that:- The provisions of Section 35E of the Central Excise Act are in pari materia with the provisions of Section 129D of Customs Act, 1962 and like Section 35E(3) of the Central Excise Act, Section 129D(3) of the Customs Act, 1962 during the period of dispute, prescribed the period of three months for issue of order by the Committee of Chief Commissioners under Section 129D(1). Respondent pleaded that the review action u/s 129D(1) of Customs Act, had been taken beyond the limitation period prescribed under Section 129D(1) as under sub-section (3) of Section 129D of Customs Act, the Committee of Chief Commissioners shall make the order under sub-section (1) within a period of three months from the date of communication of decision or order of the adjudicating authority, while in this case, the date of the order is 23-5-2011, and the review order directing the Commissioner to file the review appeal has been passed on 3-11-2011 after the expiry of the limitation period prescribed under Section 129D(3) It was clear that the order of Committee of Chief Commissioners was passed after expiry of period of three months from the date of communication - There was no question of condoning by the Tribunal of the delay in exercise of the power by the Committee under Section 129D(1), as any order issued by the Committee after expiry of limitation period prescribed in Section 129D(3), was invalid and ineffective - CCE, Raipur v. Monnet Ispat & Energy Ltd. [2010 (8) TMI 50 - CESTAT, NEW DELHI] - in clear terms that the limitation period prescribed under Section 35E(3) should be given its literal meaning and order passed beyond the limitation period prescribed is invalid and ineffective - The appeal filed by the Revenue was not maintainable. Issues:1. Review order issued beyond the limitation period under Section 129D(3) of the Customs Act, 1962.2. Validity of the appeal filed by the Revenue.3. Acceptance of miscellaneous applications for placing corrigendum and converting the appeal.Issue 1: Review order issued beyond the limitation period under Section 129D(3) of the Customs Act, 1962:The respondent exported goods declared as Basmati rice but found to be of inferior quality. The Commissioner's order confiscated the goods with an option for redemption and imposed a penalty. The Committee of Chief Commissioners directed the Commissioner to file an appeal before the Tribunal for correct determination of the points mentioned in the order. However, a corrigendum was issued due to a clerical error stating the provision of law as 'Section 129D(1) of Customs Act, 1962' instead of 'Section 35E(1) of Central Excise Act, 1944.' The Tribunal considered the delay in issuing the review order and referenced a Supreme Court judgment emphasizing that any order issued beyond the prescribed limitation period is invalid and ineffective. The Tribunal concluded that the order by the Committee of Chief Commissioners, issued after the three-month period from the date of communication, was not maintainable, and no condonation of the delay was permissible.Issue 2: Validity of the appeal filed by the Revenue:The Advocate for the respondent argued that the review action under Section 129D(1) of the Customs Act was taken beyond the prescribed limitation period. The Tribunal noted that the order-in-original was communicated to the Department on 25/5/2011, and the review order directing the Commissioner to file the appeal was passed on 3-11-2011, exceeding the three-month limitation period under Section 129D(3). Citing a Supreme Court judgment, the Tribunal highlighted that the provisions of Section 35E of the Central Excise Act are similar to Section 129D of the Customs Act, and any order issued after the limitation period is invalid and ineffective. Therefore, the Tribunal held that the appeal filed by the Revenue was not maintainable and dismissed it.Issue 3: Acceptance of miscellaneous applications for placing corrigendum and converting the appeal:The Tribunal accepted the miscellaneous applications for placing the corrigendum on record to rectify the error in mentioning the provision of law and for converting the appeal into a Customs appeal. These applications were granted based on their merits, and the Tribunal disposed of the cross-objection and other miscellaneous applications as well.---