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2019 (4) TMI 537 - AT - CustomsRectification of mistake - computation of period of limitation for filing appeal - error apparent on the face of record or not - Held that - There is error committed in the final order of this Tribunal. Firstly, the ground taken by the appellant, as regards the period of limitation, has not been decided. Secondly, there is no discussion on the ruling relied on by the appellant, which had a binding effect on the Division Bench passing the final order. Thirdly, the department till date could not produce the proof of delivery. The date of receipt of the recovery notice is the date of knowledge i.e. 01.02.2013, when the appellant received notice of recovery - further, there is no proof of proper service of the order-in-original on the appellant, as required under the provisions of Section 153(a). From the date of knowledge, the appeal filed by the appellant before this Tribunal on 24.05.2013, was within time as the same is within 90 days from 25.02.2013 - Accordingly, the final order is recalled and appeal restored to its original number to be heard on merits. ROM application allowed.
Issues Involved:
1. Computation of the period of limitation for filing the appeal. 2. Validity of service of the Order-in-Original (OIO) under Section 153(a) of the Customs Act, 1962. 3. Whether the appellant's appeal was filed within the permissible time limit from the date of knowledge of the OIO. 4. Application for rectification of mistakes in the final order. Detailed Analysis: 1. Computation of the Period of Limitation: The appellant contended that the computation of the period of limitation by the Tribunal was erroneous. The appellant argued that the appeal was filed within the permissible time limit, contrary to the Tribunal's observation that there was a six-year delay. The Tribunal acknowledged that the ground regarding the period of limitation had not been decided in the final order and found an error in the computation. 2. Validity of Service of the Order-in-Original (OIO): The appellant argued that the OIO was never served on them and was only received on 25.02.2013 after a recovery notice dated 01.02.2013. The appellant cited Section 153(a) of the Customs Act, which requires proof of delivery for effective service. The Tribunal noted that the department failed to produce proof of delivery, as mandated by Section 153(a). The Tribunal referenced the Larger Bench ruling in *Margra Industries Ltd.*, which held that dispatch by speed post without proof of actual delivery does not amount to valid service. 3. Filing of the Appeal within Permissible Time Limit: The appellant filed the appeal on 24.05.2013, arguing it was within 90 days from the date of knowledge (25.02.2013). The Tribunal agreed, holding that the appeal was filed within the permissible time limit. The Tribunal emphasized that the date of receipt of the recovery notice (01.02.2013) was the date of knowledge. 4. Application for Rectification of Mistakes: The appellant sought rectification of mistakes in the final order, arguing that the Tribunal erred in calculating the period of limitation and ignored binding rulings. The Tribunal found merit in this argument, noting that there was no discussion on the binding ruling in *Margra Industries Ltd.* and that the department had not produced proof of delivery. Consequently, the Tribunal allowed the rectification application, recalling the final order dated 20.04.2018, and restored the appeal to its original number for hearing on merits. Conclusion: The Tribunal acknowledged the errors in the final order regarding the computation of the period of limitation and the validity of service of the OIO. It held that the appeal was filed within the permissible time limit from the date of knowledge and allowed the rectification application. The appeal was restored to its original number for a hearing on merits, and the COD application was implicitly allowed. The final hearing was scheduled for 06/05/2019.
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