2018 (2) TMI 29 - AT - Customs

Delay in filing appeal - time limitation - defect in service of notice - Held that - Though it is argued by the ld. AR that the copy of the order was dispatched by speed post on 19.01.2015, undisputedly the said order dispatched was not served upon the appellant. The same has been returned as undelivered as seen from the documents produced by the appellant - the appeal is filed within time - the impugned order requires to be set aside and the matter has been remanded to the Commissioner (Appeals) who is directed to consider the appeal on merits - appeal allowed by way of remand.

Summary

Issues involved:
1. Appeal dismissed on the ground of being time-barred.

Detailed Analysis:
The appellant filed an appeal against the order passed by the Commissioner (Appeals), who dismissed the appeal citing it as time-barred. The appellant claimed that they did not receive the Order-in-Original dated 22.12.2014. They came to know about the order when co-noticees received their copies. The appellant informed the department about not receiving the order and provided a new address for communication. The appellant received the copy of the order on 18.5.2015 and filed the appeal on 20.7.2015. The appellant argued that the appeal was filed within the prescribed period after receiving the order and should not have been dismissed on the grounds of being time-barred.

The respondent opposed the appeal, stating that the Order-in-Original was dispatched to the appellant by speed post on 19.1.2015. The appellant, in a letter dated 20.4.2015, mentioned not receiving the order and requested a copy at the new address. The respondent argued that since the order was dispatched by speed post, it should be deemed delivered to the appellant. The Commissioner (Appeals) dismissed the appeal based on the time-bar, as it was filed beyond the condonable period of 30 days as per the Customs Act, 1962.

After hearing both sides, the Tribunal noted that although the order was dispatched by speed post on 19.01.2015, it was undisputed that the order was not served upon the appellant and was returned as undelivered. The Tribunal observed that since the Order-in-Original was not served to the appellant, the time for filing the appeal should start from the date of actual communication of the order. Considering the facts presented, the Tribunal concluded that the appeal was filed within the prescribed time and the Commissioner (Appeals) should have considered the appeal on its merits. Therefore, the impugned order was set aside, and the matter was remanded to the Commissioner (Appeals) with directions to consider the appeal on its merits.

In conclusion, the Tribunal allowed the appeal by way of remand to the Commissioner (Appeals) after finding that the appeal was filed within the stipulated time frame and should have been considered on its merits.