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2016 (4) TMI 718 - AT - CustomsCondonation of delay - Delay of 244 days - Appellant pleaded that they have not received the original OIA passed on 14.10.14 till date - Held that - the address of the appellant is correctly written and there is no change in the address but the letter has been returned as unclaimed . On receipt of the recovery notice, the appellant has immediately taken steps with the Commissioner (Appeals) asking for a certified copy. The Superintendent of (Appeals-II) for Commissioner (Appeals - V) intimating that they had replied to the appellant to contact their Advocate M.Velmurugan or S.Chandrasekaran, Advocate for the copy of the order. The Commissioner (Appeals) order was received from S.Chandrasekaran and the appellant written back to Commissioner (Appeals) informed that Shri.S.Chandrasekaran was not appointed by the appellant. From this, it is found that the Authorized Advocates are Velmurugan and others to appear before the Commissioner (Appeals). The appellants have not authorized Shri. Chandrasekaran. On perusal of the whole correspondence of appellants with Commissioner (Appeals), the certified copy was not issued by the Commissioner (Appeals). The appellants requested for the same. Thus, it is found that appellants obtained a copy of the impugned order through Recovery Cell by email copy dt.13.8.15. Also Section 153 of the Customs Act existed during the period in dispute. On perusal of the Customs Act,it is found that there is no provision to order authorized person. Therefore, by considering the background of the case and also considering the nature of the dispute involved, the condonation of the delay is allowed. - Delay condoned
Issues: Condonation of delay in filing application due to non-receipt of order, authorization of advocates, justification for condonation of delay, provision for serving copy of order to authorized persons under U/s.153.
In this case, the Applicant filed an application for condonation of delay of 260 days in filing an appeal due to non-receipt of the original order. The Learned counsel argued that they were unaware of the order as it was returned undelivered by the postal authorities marked as "unclaimed." They only became aware of the order when the Department sought recovery of dues. The Commissioner (Appeals) informed them that the order was dispatched but not received by the authorized advocate. The Department forwarded a copy to an unauthorized advocate, leading to confusion. The Commissioner (Appeals) refused to issue a certified copy, directing them to obtain it from the unauthorized advocate. The Applicant requested condonation of delay based on these grounds. The Learned AR opposed the delay condonation, stating that the order had been dispatched and communicated to the authorized advocate. He argued that there was no justification for condonation of delay. Additionally, the Advocate highlighted that under U/s.153, there is no provision to serve a copy of the order to authorized persons, unlike the Central Excise Act under Section 37C. After considering both arguments, the Tribunal found a delay of 244 days in filing the appeal. Despite the correct address on the postal acknowledgment, the order was returned as "unclaimed." The Appellant promptly sought a certified copy upon receiving the recovery notice. The Commissioner (Appeals) directed them to contact an unauthorized advocate for the order copy, causing further delay. The Tribunal noted that the authorized advocates were different from the one who received the order. The Commissioner (Appeals) did not issue a certified copy despite requests. The Appellant eventually obtained a copy through the Recovery Cell. The Tribunal observed that the Customs Act did not have a provision to serve orders to authorized persons under Section 153. Considering the circumstances and nature of the dispute, the Tribunal allowed the condonation of delay. Ultimately, the Tribunal allowed the Miscellaneous Application for Condonation of Delay, emphasizing that the delay was condoned due to the specific circumstances and lack of provision for serving orders to authorized persons under the Customs Act.
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