Judgment 1. This petition seeks quashing of order dated 12-3-2008 Annexure-P-13. 2. The petitioner imported Zinc skimming, on which demand of additional customs duty equal to excise duty (CVD) was raised. The petitioner contested the same by relying on the Judgments of Honble the Supreme Court in Collector of Central Excise, Patna vTata Iron and Steel Co. Ltd ., 2004 (165) E.L.T. 386 (S.C.), Commissioner of Central Excise v. Indian Aluminium Co. Ltd ., 2006 (203) E.L.T. 3 (S.C.) and Hyderabad Industries Ltd v. Union of India, 1999 (108) E.L.T. 321 (S.C.). Plea of the petitioner was not accepted. Aggrieved, the petitioner preferred an appeal before Commissioner (Appeals), Customs and Central Excise, Chandigarh, which was dismissed. 3. Grievance of the petitioner is that while dismissing the appeal of the petitioner, respondent No. 2 not only ignored the settled law but also earlier orders, particulars of which have been furnished in a chart reproduced below :- Sr. Particulars Annexure Date No. 1 Order of Commissioner (A), Mumbai P-7 22-8-2007 passed O-I-A holding that CVD is not leviable on import of zinc skimming . 2 Order of Commissioner (A), P-8 3-10-2007 Jalandhar in case of M/s Gupta Agro passed O-I-A holding that CVD is not leviable on import of zinc skimming . 3 Order of Commissioner (A), P-12 3-10-2007 Jalandhar passed O-I-A in favour of the Petitioner holding that CVD is not leviable on import of zinc skimming 4 Order of Assistant Commissioner, P-11 16-11-2007 Ldh . held that CVD is not leviable on zinc skimming (Very same officer has filed Contrary Affidavit before this Honble Court ). 5 Order of Tribunal dismissing appeal of P-9 20-2-2008 the Respondent filed against order of Commissioner (A) Jalandhar . 4. It is also pointed out that in the case of the petitioner itself, respondent No. 2 has taken different view in order dated 30-6-2008. 5. In the reply, the stand taken on behalf of respondent No. 2 is that item imported by petitioner was Zinc Skimming while the judgment relates to Zink Dross, Flux Skimming and Zinc Scaling arising as by-products during galvanization of steel sheets. 6. We find that the order dated 3-10-2007, referred to above, was an order passed before the impugned order. It has been clearly found in para No. 3 thereof that zinc skimming and dross was not excisable. The position appears to be settled legal position. 6. We find that the order dated 3-10-2007, referred to above, was an order passed before the impugned order. It has been clearly found in para No. 3 thereof that zinc skimming and dross was not excisable. The position appears to be settled legal position. Even respondent No. 2 in subsequent order dated 30-6-2008, a copy of which has been supplied by the learned counsel for the petitioner at the time of hearing, in paras 6 and 7 of the order, held :- 6. I have examined the case records. The brief issue for consideration is whether CVD was leviable on the import of Zinc Skimmings. The adjudicating authority while disposing of respondents representation dated 22-10-2007 vide impugned order, inter alia held that CVD was not leviable on the import of Zinc Skimmings and relied upon Order-in-Appeal No. 116/CUS/APPL/LDH/2007 dated 3-10-2007 passed by Commissioner (Appeals), Jalandhar (Hqrs. At Chandigarh). It has been submitted in the departmental appeal that above cited Order-in- Appeal has not been accepted by the department and an appeal has been filed in the CESTAT. The respondent submitted that all grounds raised in the present appeal are identical as raised in appeal before CESTAT and that CESTAT has dismissed the appeal of the Revenue on 20-2-2008. The respondent also placed on record photocopy of CESTAT, New Delhi Final Order No. C/31/2008-Customs dated 20-2-2008 passed Tribunal in the appeal filed by the department against above cited Order-in-Appeal No. 116/Cus/Appl/Ldh/2007 dated 3-10- 2007. The Tribunal vide above cited Final Order No. C/31/2008-Customs dated 20-2-2008 [2008 (226) E.L.T. 581 (Tribunal)] dismissed the appeal of the department holding as under :- The dispute relates to levy of countervailing duty on Zinc Skimming. The learned Commissioner held that as the goods in question are not excisable, no countervailing duty could be imposed and accordingly set aside the order of the adjudicating authority. In coming to the said conclusion, he placed reliance on a decision of the Supreme Court in the case of CCE, Jaipur v. J.K. Synthetics , 2000 (120) E.L.T. 54 (S.C.). The learned DR tried to distinguish the said decision. He contended that the decision was rendered on the facts of the case and has no bearing on the present dispute. We are unable to agree with the submission. The learned DR tried to distinguish the said decision. He contended that the decision was rendered on the facts of the case and has no bearing on the present dispute. We are unable to agree with the submission. The decision lays down a principle of law that where excise duty cannot be levied on any goods, no countervailing duty/additional duty can be levied. Thus if we may say so with respect, is plain common sense. We therefore do not think that the Commissioner committed any error in upholding the claim of the assessee. 7 In view of the above cited decision of the Tribunal, the present appeal filed by the department does not sustain. The respondent have also contested the departmental appeal on the ground of limitation pleading that Order-in- Original was passed by Assistant Commissioner on 16-11-2007 and review order dated 19-2-2008 was passed after 3 months so order is time barred as per Section 129D(3) of Customs Act, 1962. It is observed that as per provisions of Section 129D(3) ibid, the review order is to be passed within a period of three months from the date of communication of the decision or order of adjudicating authority and respondent have not brought on record any evidence to establish that review order in this case was passed after a period of three months from the date of communication of Order-in-Original to the reviewing authority. Accordingly, respondents plea of review order being time barred, does not sustain. However, since present appeal filed by the department does not succeed on merits, the same is liable to be rejected. 8. Accordingly, we allow this petition and quash the impugned order dated 12-3-2008 Annexure-P-13. 9. Before parting with the order, we consider it appropriate to direct Secretary, Ministry of Finance, to look into the conduct of respondent No. 2 in passing order which was inconsistent with his previous as well as subsequent order and take such action as may be considered appropriate. 10. The petition is disposed of.