2019 (8) TMI 590 - AT - Customs

Condonation of delay in filing appeal - time limitation - delayed Service of order - HELD THAT - The respondent has proved on record that he received the Order-in-Original only on 25.01.2018. Further the Order-in-Original dated 27.09.2016 was sent to their old address as per the dispatch register filed by the Revenue in spite of the fact that the respondent has intimated the change of its address to the Department in the year 2015 and that said letter is also on record. Further the Department was also aware of the change in address and sent the personal hearing notice dated 12.04.2016 to the new address of the respondent but in spite of this the Order-in-Original was sent to the old address which was not received by the respondent and finally the respondent received the Order-in-Original only on 25.01.2018 and thereafter filed the appeal before the Commissioner with a delay of 28 days which was condoned by the Commissioner. Before the Commissioner (Appeals) the Department did not raise the objection of limitation. Further, the Department has not been able to bring on record any evidence regarding the proof of delivery of the Order-in-Original. There is no infirmity in the impugned order passed by the Commissioner (Appeals) condoning the delay of 28 days - Appeal dismissed - decided against Revenue.

Summary

Issues:
1. Appeal against the order passed by the Commissioner (Appeals) setting aside the Order-in-Original and allowing the appeal of the respondent.
2. Allegation of time limitation in filing the appeal.
3. Discrepancy in the delivery of the Order-in-Original to the respondent.

Analysis:

Issue 1:
The appeal was filed by the Revenue against the order passed by the Commissioner (Appeals) setting aside the Order-in-Original dated 27.09.2016 and allowing the appeal of the respondent. The case involved the import of goods, specifically dietary supplements, which were initially examined and found fit for human consumption. Subsequently, the goods were re-examined for detailed information, and the Department issued a show-cause notice proposing confiscation and penalty under the Customs Act, 1962. The adjudicating authority then passed the Order-in-Original, confiscating the goods and imposing penalties. The appellant contended that the impugned order was not sustainable in law and raised issues regarding the time limitation of the appeal filed by the importer. However, after hearing both parties and examining the records, the Tribunal upheld the impugned order passed by the Commissioner (Appeals), dismissing the appeal of the Revenue.

Issue 2:
The Revenue alleged that the appeal filed by the importer before the Commissioner (Appeals) was beyond the prescribed time limit as per the Customs Act, and the delay of 28 days in filing the appeal was not properly addressed. The Revenue argued that the Commissioner (Appeals) had overlooked the limitation of time and had exceeded jurisdiction in condoning the delay. On the other hand, the respondent justified the delay by providing detailed reasons for the delay in filing the appeal, citing discrepancies in the delivery of the Order-in-Original to the correct address. The Tribunal found that the respondent had proven receiving the Order-in-Original only on 25.01.2018, due to the Department sending it to the old address despite being informed of the change in address. The Tribunal concluded that the delay of 28 days was properly condoned by the Commissioner (Appeals), as the Department failed to provide evidence of delivery or raise objections regarding the limitation during the appeal process.

Issue 3:
The discrepancy in the delivery of the Order-in-Original to the correct address played a crucial role in determining the validity of the appeal filed by the respondent. The Tribunal noted that the respondent had intimated the Department of the address change in 2015, and despite sending other notices to the new address, the Order-in-Original was mistakenly sent to the old address. This discrepancy led to the delay in the respondent receiving the order and subsequently filing the appeal. The Tribunal found that the Department's failure to prove delivery or raise objections regarding the limitation period during the appeal process supported the Commissioner (Appeals) decision to condone the delay and uphold the appeal of the respondent.

In conclusion, the Tribunal upheld the impugned order passed by the Commissioner (Appeals), dismissing the appeal of the Revenue based on the findings related to the time limitation issue and the discrepancy in the delivery of the Order-in-Original.