2011 (5) TMI 798 - AT - Customs

Whether the appeal was filed within a period of 60 days from the date of receipt of the order or not appellants factory was lying closed for a longer period. The appellant did not participate in the adjudication proceedings on account of non-receipt of show cause notice and on account of non-receipt of the notices of personal hearing - order was not served upon the appellant in person but the same was pasted on the notice board of the factory after the same was returned back by the postal authorities with remarks not claimed - Held that - Commissioner (Appeals) has not decided the issue of the actual date of receipt of the order, in the light of the declaration of law by the Larger Bench in the above referred decision of Margra Industries Ltd. as also has not referred to the other judgments including the Supreme Court s decision, relied upon by the appellant to decide about the actual date of communication of the order, matter remanded to Commissioner (Appeals), appeal get disposed off

Issues:
1. Delay in filing appeals before Commissioner of Customs (Appeals).
2. Determining the actual date of receipt of the impugned order.
3. Commissioner (Appeals) powers to condone delay.

Issue 1: Delay in filing appeals before Commissioner of Customs (Appeals):
The judgment deals with the issue of delay in filing appeals before the Commissioner of Customs (Appeals). The appellant argued that they were unaware of the adjudication proceedings due to their factory being closed, and only became aware when approached for recovery of dues. They contended that the appeals were filed within 60 days of obtaining the order, relying on the Supreme Court's decision that the date of receipt of the order is crucial for determining the limitation period. The appellant also argued that the impugned dues were based on unfounded allegations of non-fulfillment of export obligations, which they could prove otherwise. The Commissioner of Customs (Appeals) dismissed the appeals due to a delay of 468 days, beyond the 30-day limit for condonation.

Issue 2: Determining the actual date of receipt of the impugned order:
The judgment highlights the importance of determining the actual date of receipt of the impugned order to establish if the appeals were filed within the limitation period. Both parties agreed that the factory was closed for an extended period, and the impugned order was not served in person but pasted on the factory's notice board after being returned by postal authorities as "not claimed." The appellant submitted an affidavit stating the factory closure and the guard's refusal to accept delivery. The Tribunal decided to remand the matter to the Commissioner (Appeals) to ascertain the actual date of communication of the order and subsequently determine the issue of limitation. The decision emphasized the need for a factual determination of when the appellant received the order.

Issue 3: Commissioner (Appeals) powers to condone delay:
The judgment clarified that while the Commissioner (Appeals) lacked the authority to condone delays beyond 30 days, the primary issue in this case was not about the Commissioner's powers but rather the actual date of receipt of the order. The Tribunal noted that various judicial authorities, including the Supreme Court, had settled the Commissioner's limited power to condone delays. The focus was on establishing the date of receipt of the order to determine if the appeals were filed within the statutory limitation period.

In conclusion, the judgment addressed the issues of delay in filing appeals, the significance of determining the actual date of receipt of the order, and the Commissioner (Appeals) limited powers to condone delays. The decision emphasized the need for factual determination regarding the receipt of the order and remanded the matter for further consideration by the Commissioner (Appeals) to decide on the issue of limitation and subsequent merits of the case.

← Previous Next →