2011 (3) TMI 950 - AT - Customs

Principal of natural justices - the original adjudicating authority in reference was issued on 29.06.99 but the said appeal along with the stay application was filed on 29.10.09 which was after a lapse of more than ten years - The appellant claimed that they came to know about the said adjudication order only on receipt of the letter dated 11.06.09 of the Assistant Commissioner of Customs, Porbandar for recovery of the due arising out of the OIO - Appellant thereafter contended that the said demand has already been dropped by Hon ble CESTAT, New Delhi vide order No.213/05-NBA dated 31.01.05 - Thereafter Assistant Commissioner vide letter dated 08.09.09 stated that the CESTAT, New Delhi s order mentioned by the appellant pertains to another OIO and not for the OIO No.34/AC/1999 dated 29.06.99 - the appellant submitted that they have never received OIO in question and requested for the same, a copy of which was forwarded to them vide letter dated 24.09.09 - the said letter report of the Assistant Commissioner was never supplied to the appellant - No opportunity was given to the appellant to contest the said report. Further, as pleaded by the learned advocate the said report nowhere shows the date of receipt of the impugned order - It also does not disclose as to whether the acknowledgement due, under which the impugned order was sent, stands received back by the Revenue or not - set aside the impugned order and remand the matter to Commissioner (Appeals) for fresh decision.

Summary

Issues:
1. Appeal dismissed on the ground of limitation.
2. Violation of principles of natural justice.
3. Consideration of receipt vs. dispatch of order-in-original.

Analysis:
1. The Appellate Tribunal noted that the Commissioner (Appeals) had dismissed the appeal based on the ground of limitation. The original adjudicating authority had issued the order-in-original on a specific date, but the appeal along with the stay application was filed after a significant delay of more than ten years. The appellant claimed they were unaware of the adjudication order until they received a letter for recovery of dues. The Tribunal observed that the Assistant Commissioner had confirmed the dispatch of the order-in-original through registered post, and the appellant had changed addresses without notifying the department. Citing relevant case law, the Tribunal emphasized that proof of sending a post through registered mail is considered as delivery unless proven otherwise by the addressee.

2. The appellant's advocate argued that the report of the Assistant Commissioner, crucial for the case, was not shared with the appellant, violating principles of natural justice. The report did not specify the date of receipt of the order-in-original, and it was unclear whether the acknowledgment due for the order was received back by the Revenue. The advocate contended that the focus should be on the actual receipt of the order rather than its dispatch. The Tribunal agreed that the failure to provide the report to the appellant deprived them of the opportunity to contest it, thus warranting a violation of natural justice.

3. Considering the lack of disclosure regarding the receipt of the order-in-original and the absence of acknowledgment due status in the report, the Tribunal concluded that the impugned order should be set aside. The matter was remanded to the Commissioner (Appeals) for a fresh decision, allowing the appellant to present their arguments based on relevant case law. The Tribunal emphasized the importance of providing the report to the appellant and granting them an opportunity to defend their position. Both the stay petition and the appeal were disposed of accordingly, ensuring a fair and just process for all parties involved.