2021 (3) TMI 945 - AT - Customs

Condonation of delay in filing appeal - whether the appeal was filed within time limitation? - HELD THAT - The Revenue has not placed on record the acknowledgement due after having served/communicated the Order-in-Original to the appellant and hence, I am of the prima facie view that the date of communication, as claimed by the appellant, has to be accepted. The Hon ble Madras High Court in the case of JAI ENTERPRISES VERSUS COMMISSIONER OF CUSTOMS (APPEALS), CHENNAI 2006 (5) TMI 99 - HIGH COURT OF JUDICATURE AT MADRAS has observed that apparently the notice was sent to the proper address while the Postal Authorities made an endorsement left and in the case of M/s. Jai Enterprises (supra), the endorsement given by the Postal Authorities was absent and intimation delivered , for which reason it was observed that the petitioner therein was avoiding service. Any order normally would be sent by Registered Post with Acknowledgement Due (RPAD), which would have been the case here also followed by the Adjudicating Authority. So, when the Order-in-Original was dispatched by RPAD in terms of Section 153 of the Customs Act, 1962, the acknowledgement must have come back, which is not placed on record. In any case, the service of the same on the very same day can also not be accepted since the location of the assessee is in a different State. There was no delay in filing the first appeal and therefore, the Commissioner (Appeals) was in error in rejecting the appeal as time-barred - the matter is remanded to the file of the Commissioner (Appeals) to hear the appellant and pass an order on merits in accordance with law - Appeal allowed by way of remand.

Summary

Issues Involved:
Whether the rejection of the first appeal as time-barred by the Commissioner (Appeals-II) was correct.

Analysis:
The appeal revolved around the timeliness of the first appeal filed by the appellant. The appellant argued that the Order-in-Original was received after the date claimed by the Revenue, justifying the timely filing of the appeal. The Revenue, on the other hand, supported the Commissioner (Appeals) decision, emphasizing the absence of an application for condonation of delay. The key contention was the date of communication of the Order-in-Original to the appellant.

The Tribunal noted that the Revenue failed to provide evidence of acknowledgment after serving the Order-in-Original to the appellant. Citing a judgment of the Hon'ble Madras High Court, the Tribunal highlighted the importance of proper service, especially when sent via Registered Post with Acknowledgement Due (RPAD). The absence of the acknowledgment raised doubts about the timely communication of the order to the appellant, given the inter-state location of the assessee.

Based on the lack of evidence supporting the Revenue's claim and the principles of proper service, the Tribunal concluded that there was no delay in filing the first appeal. Therefore, the Commissioner (Appeals) erred in rejecting the appeal as time-barred. As a result, the Tribunal set aside the impugned order and remanded the matter to the Commissioner (Appeals) for a fresh hearing, emphasizing the need to adhere to the principles of natural justice.

In summary, the Tribunal's decision focused on the procedural aspects of timely communication and the absence of conclusive evidence supporting the Revenue's position. By emphasizing the importance of proper service and lack of delay in filing the appeal, the Tribunal overturned the initial rejection and directed a re-hearing by the Commissioner (Appeals) to ensure a fair and just determination on the merits of the case.