2015 (12) TMI 580 - AT - Customs

Appeal before the commissioner (Appeals) - date of receipt of order by the appellant - Bar of limitation - Denial of refund claim - Held that - order was sent by speed post and not under registered A/D, we also note that the appellant addressed a letter as early as on 13-10-2008 to the department seeking to know the result of their refund claim. By that time, the order was already passed by the Asstt. Commissioner and if the said letter would have been responded by the Revenue, the delay would not have been so huge and would have been within the powers of Commissioner (Appeals) to condone the same. We also note that the dispute is as regards the refund claim of the appellant and there is no duty demand so as to attribute any mala fide to the appellant for delayed filing of the appeal. As regards the assessee s contention it is only subsequently when the Order-in-Original was again sent under the cover of letter dated 16-7-2009, the same was received by them on 25-7-2009. As such, we are of the view that the appeal having been filed within the period of limitation, starting from the date of receipt of the order has to be held as having been filed well within the time. - Impugned order is set aside - Decided in favour of assessee.

Summary

Issues: Time-barred appeal due to delay in filing.

In this judgment by the Appellate Tribunal CESTAT NEW DELHI, the issue revolved around the rejection of appeals by the Commissioner (Appeals) on the grounds of time-bar due to a delay in filing. The original adjudicating authority had passed an order on 12-8-2008, rejecting refund claims filed by the appellant. The Commissioner (Appeals) observed a delay of about one year in filing the appeal, which he deemed beyond his jurisdiction to condone.

The Tribunal noted that the impugned order was dispatched via speed post to the appellant on 13-8-2008, but the appellant claimed non-receipt. The appellant inquired about the adjudication result on 13-10-2008, receiving a response only on 16-7-2009, and the order was finally received on 25-7-2009. The appeal was filed within three months from the date of receiving the order. Despite the order being sent via speed post and not registered A/D, the appellant's proactive inquiry to the department on 13-10-2008 could have mitigated the delay if responded to promptly. The Tribunal emphasized that the delay was not intentional, as there was no duty demand involved, and the appellant's actions were in pursuit of their refund claim.

Furthermore, the Tribunal highlighted that the delay was primarily due to the delayed receipt of the Order-in-Original, which was re-sent on 16-7-2009 and received on 25-7-2009. Considering the appeal was filed within the limitation period starting from the date of actual receipt of the order, the Tribunal set aside the Commissioner (Appeals)'s decision and remanded the matter for a decision on merits. The judgment underscores the importance of timely communication and the impact of procedural delays on appeal timelines, especially in cases where no mala fide intentions are evident.