'Twice' Review of an order - Strictly NO, warns Board
THIS Committee business of review of orders is proving to be a pungent thing.
The CBEC has noticed that an Order-in-Appeal was reviewed by the Committee twice.
Perhaps, Board does not like anything which is done 'over and over again' so has come out with an instruction and informs the field formations that there are no provisions in the Customs Act, 1962, the Central Excise Act, 1944 and the Finance Act, 1994 for reviewing the same order twice.
The Board further instructs the field formations to abide strictly by the provisions mentioned in law for reviewing the orders and counter check revenue figures in the disputed demands before taking a view whether a case is fit for preferring an appeal.
Incidentally, it is informed that the instruction has been issued with the approval of the competent authority.
Perhaps an RTI application would reveal who the 'competent authority' is.
The entire issue, to our knowledge, emanates from the case of Alufit India Pvt. Ltd. - - Order dated 11.12.2015 - - 06 01 2016
++ In this case, initially, the OIA was accepted by the Committee on 21.12.2012 by citing the Litigation Policy inasmuch as the duty involved was Rs.90,508/-. Interestingly, neither in the OIO nor in the OIA any duty demand was quantified or confirmed as the issue pertained to classification.
++ On 24.04.2015, the Committee passed a review order - Kindly note that on the first occasion the O-in-A was examined and found legal and proper and on re-examination after more than two and a half years, the review order came to be passed.
++ Obviously, when the appeal was filed before the CESTAT, it was badly delayed and so the Revenue sought a condonation of delay of 947 days which the Bench flatly refused.
++ The Bench also observed that Section 129A (2) or Section 129D of Customs Act does not empower the Committee of Commissioners to review their own order again and take different view; there is also a time limit to review any order and the section does not empower the Committee to review the order beyond the specified period.
Last but not least, the Bench wanted the CBEC to complete the picture.
It said - "We bring it to the notice of the CBEC [Board] and Chief Commissioner of Customs, Chennai to take necessary steps on the powers of Committee to review the orders under Section 129D and 129A (2) of Customs Act and issue necessary guidelines to the field formations as deem fit."
Quite possibly, this is the reason the current Instruction dated 17th March 2016 makes its appearance.
But, the Board, it appears, is unaware of the decision dated 14.12.2015 delivered by the Mumbai Bench of the CESTAT.
In the case of CCE, Goa vs. Vinka Industries & Ors. (2016-TIOL-60-CESTAT-MUM), on a similar issue, while condoning the delay, in the matter of 34 Revenue appeals, the CESTAT, WZB held that the decision rendered by the Committee of Commissioners is an administrative function and a fresh decision by the same committee is valid in law. Incidentally, the Bench placed reliance on the Madras High Court decision in Commissioner of Customs, Tuticorin Vs. Madura Coats Pvt. Ltd. - and the Delhi High Court decision in Commissioner of Service Tax Vs. Japan Airlines International Co. Ltd. - 2015-TIOL-1645-HC-DEL-ST-LB.
More mileage can be derived from the Larger Bench CESTAT decision in the case of Monnet Ispat & Energy Ltd. (2010-TIOL-1133-CESTAT-DEL-LB) where the Larger Bench held that the period which can be condoned in relation to filing of the appeal under section 35 E (4) of the CEA would include the period availed by the review committee in terms of section 35 E (1) or 35 E (2) of the said Act; that the Tribunal cannot sit in appeal over the review order of the Committee but Tribunal must be satisfied about delay in taking the decision as the same form part of the procedure relating to preparation of appeal against an impugned order. This view was agreed with by the Supreme Court in the case of Kap Cones 2015-TIOL-149-SC-CX.
It may also be noted that the statute expressly or impliedly does not make the authority functus officio - Vide: Chet Ram Vashist vs. Municipal Corporation of Delhi - AIR 1981 SC 653, Bhavnagar University vs. Palitana Sugar Mill Pvt. Ltd. - AIR 2003 SC 511, Balwant Singh vs. Anand Kumar Sharma - AIR 2003 SC 1543, Baru Ram Vs. Smt. Prasanni & Others - AIR 1959 SC 93 and Sharif-ud-Din vs. Abdul Gani Lone - AIR 1980 SC 303 [para 11 of LB decision]
So, did the Board actually jump the gun?
Instruction F. No. 390/Review/36/2014-JC dated March 17, 2016