2013 (12) TMI 230 - AT - Customs

Condonation of delay - Adjudication order not received - Held that - show cause notice was issued on 16-1-2007 for personal hearing for 29-9-2008 and the applicants were represented by the advocate. Order-in-appeal was passed on 13-10-2008. Thereafter vide letter dated 7-3-2009 the applicant asked for the status of the appeal. It was informed that the appeal has already been decided and order has already been dispatched. Then the applicant repeatedly asked for copy of the order and same was supplied only by letter dated 15-7-2009. From the order-in-appeal we find that copy of the order was not marked to the Advocate who appeared at the time of personal hearing. In these circumstances, we find that applicant has explained the delay. In these circumstances, we find merit in the contentions of the applicant. The delay, if any, is condoned - Delay condoned. Waiver of pre deposit - Held that - applicant had already deposited 50% of the duty at the time of hearing before the Commissioner (Appeals). Keeping in view the facts and circumstances of the case, the amount already deposited is sufficient for hearing of appeal - Stay granted.

Summary

Issues:
Delay in filing appeal due to non-receipt of order-in-appeal, Condonation of delay, Waiver of duty and penalty, Stay application.

Delay in Filing Appeal - Condonation of Delay:
The applicant filed an application for condonation of delay of 240 days in filing the appeal, citing non-receipt of the order-in-appeal. The applicant claimed that despite the adjudication order being passed on 13-10-2008, they did not receive the order. Various correspondences were exchanged between the applicant and the authorities regarding the non-receipt of the order. The Revenue contended that since the order was dispatched via speed post and not returned, it should be presumed as received, leading to a delay in filing the appeal. However, the Tribunal noted that the applicant had consistently sought the order and only received it on 15-7-2009, leading to the delayed filing. The Tribunal found merit in the applicant's contentions and condoned the delay, allowing the application for condonation of delay.

Waiver of Duty and Penalty:
The applicant also filed an application for waiver of duty and penalty, having already deposited 50% of the duty during the hearing before the Commissioner (Appeals). The Tribunal considered the circumstances and deemed the amount already deposited as sufficient for the appeal hearing. Consequently, the Tribunal waived the pre-deposit of the remaining duty and penalty, further staying the recovery of the outstanding amount during the pendency of the appeal.

Stay Application:
Lastly, the Tribunal allowed the stay application, indicating that the applicant's request for the stay of recovery of duty and penalty during the appeal proceedings was granted. The Tribunal's decision on the stay application ensured that the recovery process was halted until the finalization of the appeal.