2014 (5) TMI 54 - AT - Customs

Bar of limitation - No notice of delay in filing appeal - preliminary grounds - Disposal without considering merits - No acknowledgment receipt of courier signed by assessee Opportunity of hearing - Held that - The order which was purportedly sent by courier on 29.10.2012 could not have reached at destination (Ludhiana) on 30.10.2012, as is evident from the e-mail received from Professional Courier - This e-mail also indicate that, normally such kind of packets takes 3 to 4 days for delivering to consignee in Ludhiana, if are sent from Mundra - First appellate authority did not put to notice the appellant that there is delay in filing appeal and disposed it only on limitation - This is not a correct approach for disposing an appeal. First appellate authority should have disposed the appeal on merits and if he felt so strongly that appeal has been filed belatedly, he should have given an opportunity to the appellant to explain the delay It is found that there is no delay in filing the appeal before the first appellate authority - This Court is unable to go into merits of the case as the first appellate authority has not recorded any finding on the merits of the case, impugned order is set-aside Matter is remanded back to first appellate authority for disposal on merits Decided in favour of assesse.

Summary

Issues:
1. Timeliness of filing the appeal.
2. Proper disposal of the appeal by the first appellate authority.

Analysis:
1. Timeliness of filing the appeal:
The appellant received the order-in-original in December 2012 but filed the appeal on 12.02.2013. The first appellate authority dismissed the appeal on the ground of limitation, stating that the appeal was filed after 5 months from the date of the order. However, the appellant argued that the order was dispatched through a professional courier on 29.12.2012, not on the date mentioned by the office. The appellant provided evidence, including an RTI response and photocopies of the passport showing the proprietor's travel abroad during the relevant period. The Commissioner of Customs checklist also confirmed that the appeal was filed on time. The Tribunal found that there was no delay in filing the appeal before the first appellate authority.

2. Proper disposal of the appeal by the first appellate authority:
The Tribunal noted that the first appellate authority did not consider the appeal on its merits but only on the grounds of limitation. The authority failed to inform the appellant about the delay in filing the appeal and did not provide an opportunity to explain the delay. The Tribunal emphasized that the correct approach would have been to dispose of the appeal on its merits and allow the appellant a chance to address any delay. As the first appellate authority did not record any findings on the case's merits, the Tribunal set aside the impugned order and directed the authority to restore the appeal to its original number and dispose of it on merits, following the principles of natural justice.

In conclusion, the Tribunal allowed the appeal by remanding it to the first appellate authority for proper consideration on merits, emphasizing the importance of following due process and principles of natural justice in such matters.