COMMR. OF CUS. (EXPORT), JNCH Vs. NITIN PHERWANI

JUDGEMENT

(1.) Anil Choudhary, Member (J)

(2.) THE Revenue have filed this appeal being aggrieved with the Order -in -Original No. 43/2011, dated 30 -4 -2011 passed by the Commissioner of Customs (Export), JNCH, Nhava Sheva. The Counsel for the respondent Mr. J.S. Sanghvi raises a preliminary objection that the appeal is time -barred and/or in violation of the provisions of Section 129D(3) of the Customs Act, which provides every order under sub -section (1) or sub -section (2), as the case may be, shall be made within a period of 3 months from the date of communication of the decision or order of the adjudicating authority. Admittedly the impugned order was received in the office of the Customs Authority on 12 -5 -2011 [duly confirmed by report dated 3 -6 -2015 by the Deputy Commissioner of Customs Vide Letter F. No. S/26 -Misc. -01/2013 -14/Review/TCU(X)]. The review order have been passed and signed on 6 -9 -2011. The period of 3 months from the date of receipt of order by the Custom Authorities expired on 10 -8 -2011. Thus the review order under Section 129D(3) of the Act 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. The purported order of review dated 6 -9 -2011 is non est in the eyes of law. The Counsel prays for dismissal of the appeal as 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 Tribunal is empowered to condone the delay in filing appeal, on the reasonable cause being shown, in filing the appeal, in case the review order having been passed within the time permitted under the Act.

(3.) HEARD the parties. 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.