2017 (10) TMI 575 - AT - Customs

Refund of SAD - service of order of original - appellant claimed that there was a delay in filing appeal on the ground that they did not receive copy of the Order-in-Original since the same might have been sent to their old address - Held that - the Order-in-Original sent to the appellant s address has not been returned as undelivered - also, they did not intimate the change of address to the department and have not pursued the next hearing date of the refund claim after filing a letter of adjournment. Therefore, the contention of the appellant that they have not received the copy of the Order-in-Original and had obtained the duplicate copy of the order only on 25.06.2013 and the appeal was filed before the Commissioner (Appeals) within time when computed from 25.06.2013 cannot be accepted. In the case of Singh Enterprises 2007 (12) TMI 11 - SUPREME COURT OF INDIA , the Hon ble Apex Court has categorically held that the Commissioner (Appeals) cannot condone the delay of more than 30 days which is the condonable period prescribed by the statute. The Commissioner (Appeals) has rightly rejected the appeal on the ground of being time barred - appeal dismissed - decided against appellant.

Summary

Issues:
- Refund claim for Special Additional Duty (SAD) on Wind Operated Electricity Generator (WOEG) import
- Delay in filing appeal before Commissioner (Appeals) due to alleged non-receipt of Order-in-Original
- Change of address and its impact on communication regarding the refund claim

Analysis:
1. The appellant, engaged in trading and assembly of WOEG, imported WOEG products through Chennai Seaport, paying customs duties including 4% SAD. They filed a refund claim for SAD on 3.11.2010. Despite seeking an extension of time and changing premises in May 2011, the Order-in-Original dated 30.06.2011 was passed by the refund sanctioning authority rejecting the refund claim. The appellant appealed before the Commissioner (Appeals) after a delay of one year and 11 months, citing non-receipt of the Order-in-Original due to a change of address. The Commissioner (Appeals) rejected the appeal as time-barred and on merits, leading to the current appeal before the Tribunal.

2. The appellant's counsel argued that the Order-in-Original was not received due to the change of address, emphasizing that the appeal period should start from the date of receiving the duplicate copy on 25.6.2013. The counsel contended that the Commissioner (Appeals) did not consider the Chartered Accountant certificate provided. On the other hand, the respondent's representative defended the impugned order, stating that the appellant was duly informed of personal hearing opportunities and failed to attend. The respondent argued that the appeal was filed well beyond the condonable period and that the Commissioner (Appeals) rightly rejected it on the grounds of delay.

3. The Tribunal noted that the appellant failed to inform the department of the address change promptly. Despite mentioning the new address in a letter requesting an adjournment, the appellant did not formally notify the change until later. The Tribunal observed that the appellant did not pursue the status of their refund claim diligently, leading to delays in responding to official communications. The Tribunal concluded that the appellant's claim of non-receipt of the Order-in-Original due to the address change was not substantiated, especially as the letter requesting adjournment was hand-delivered, indicating awareness of proceedings.

4. The Tribunal rejected the appellant's argument that the Order-in-Original was not received due to the address change, noting the lack of formal notification to the department and the delayed response to official communications. Citing precedent, the Tribunal affirmed that the Commissioner (Appeals) cannot condone delays exceeding 30 days, supporting the rejection of the appeal as time-barred. Consequently, the Tribunal upheld the decision of the Commissioner (Appeals) to dismiss the appeal due to being time-barred, finding no merit in the appellant's contentions.

5. In conclusion, the Tribunal dismissed the appeal, affirming the Commissioner (Appeals)'s decision to reject the appeal as time-barred. The judgment was pronounced on 10.10.2017 by the Tribunal, settling the dispute regarding the refund claim for SAD on WOEG imports.