By TIOL News Service

MUMBAI, AUG 11, 2015: THIS is a Revenue appeal against the order dated 30.04.2011 passed by the Commissioner of Customs (Export), JNCH Nhava Sheva.

The respondent raised a preliminary objection that the appeal is time barred and/or in violation of the provisions of Section 129D(3) of the Customs Act, inasmuch as the review order ought to have been passed within a period of 3 months from the date of communication of the decision or order of the adjudicating authority. That in the present case the impugned order was received in the office of the Customs Authority on 12/5/2011 (duly confirmed by report dated 03.06.2015 by the Deputy Commissioner of Customs Vide letter F.No. S/26-Misc-01/2013-14/Review/TCU(X)) and the review order was passed and signed on 6/9/2011 and since the period of 3 months from the date of receipt of order had expired by that date, the review order passed u/s s. 129D(3) is not in order, as permitted by law and accordingly no appeal can be filed by the Revenue in absence of a legal review order; that the purported order of review dated 6/9/11 is non-est in the eyes of law.

It is further submitted that as the Tribunal cannot condone the delay in passing the order under sub Section 3 of Section 129D (review order), there being no provision for the same, the Revenue appeal should be dismissed.

The AR, the Tribunal mentions in its order 'could not give an answer to the objection raised by the Counsel for the respondent'.

Therefore, the Bench made the following observations & held -

"5. Having considered the rival contentions, I hold that this Tribunal is not empowered to condone the delay in passing of review order, as provided under the provisions of sub Section 3 or Section 129D of the Customs Act. Thus I hold that the appeal is time barred and not entertainable by this Tribunal in absence of a legal review order under sub Section 3 of Section 129D of the Act. Thus, the appeal of Revenue is dismissed."

But… - The Supreme Court on 20.07.2015 has allowed the Revenue appeal in the case of Kap Cones - 2015-TIOL-149-SC-CX and held that the analysis made by the larger Bench in the case of Monnet Ispat & Energy Ltd. - 2010-TIOL-1133-CESTAT-DEL-LB (that the period which can be condoned in relation to filing of the appeal under section 35 E (4) of the said Act would include the period availed by the review committee in terms of section 35 E (1) or 35 E (2) of the said Act) to be correct.

So, this perhaps is not the end of the road for the case…

(See 2015-TIOL-1673-CESTAT-MUM)