CARRIER AIRCON LTD. Vs. CC

JUDGEMENT

(1.) THE appellants are aggrieved by the order of the Commissioner of Customs (Appeals) setting aside the order of the original authority sanctioning refund of customs duty.

(2.) THE facts of the case are that the appellants had cleared various consignments of imported parts of Air Conditioners under nine Bills of Entry on payment of duty as provisionally assessed by the Assistant Commissioner of Customs (SVB) by enhancing the assessable value of the goods by 20% of the declared value; that the Assistant Commissioner, by order dated 14.3.97 which was passed in de novo proceedings pursuant to a remand order of the Commissioner (Appeals), accepted the declared value for assessment of the goods; that the provisional assessments were finalised accordingly as directed by the Commissioner of Customs (Import); that the appellants filed application for refund of the excess customs duty paid on the nine Bills of Entry; that the Deputy Commissioner of Customs concerned sanctioned the refund as per Order -in -Original dated 23.7.99 (issued on 1.9.99); that the Commissioner of Customs (Import) by Review Order dated 28.7.2000 directed appeal to be preferred against the said Order -in -original; and that the appeal filed accordingly by the department was allowed by the Commissioner (Appeals). The order of the lower appellate authority, which is under challenge in the present appeal, reads as under:

(3.) HEARD both the sides. The counsel for the appellants, reiterating the main ground of the appeal, submitted that the Deputy Commissioner's order passed on 23.7.99 was not reviewed by the Commissioner within the period of one year prescribed under Sub -section (2) of Section 129 -D of the Customs Act. The review order passed by the Commissioner on 28.7.2000 was time -barred and consequently the appeal filed with the Commissioner (Appeals) by the department against the Deputy Commissioner's order was not maintainable. The learned counsel relied on the Supreme Court's judgment in CCE v. MM, Rubber Co., 1992 (37) ECC 16 (SC) : 1991 (55) ELT 289 (SC) and the Tribunal's decision in the cases of Solid Containers ltd. v. CCE, 1993 (68) ELT 598 and Polycoat Powders (P) Ltd. v. CCE, 1998 (60) ECC 641 (T) : 1998 (100) ELT 172. The counsel also argued on the merits of the case, drawing support from case law. Vis -a -vis the main ground raised in the appeal, the learned SDK argued that the review order was not to be treated as time -barred as it had been passed within one year from the date of issue of the Deputy Commissioner's order. She also sought to distinguish the aforecited decisions by pointing out that none of the decisions had anything to do with Section 129 -D of the Customs Act.