2021 (4) TMI 1195 - AT - Customs

Condonation of delay in filing appeal - time limitation - Commissioner (Appeals) did not inform the appellant with regard to the issue of delay and had heard the appeal on merits - appellant was not put to notice with regard to the issue of delay - HELD THAT - It is seen that the Commissioner (Appeals) has computed the period of limitation from the date of dispatch of the Order-in-Original . As per section 128 Clause (1) of Customs Act, 1962, the person aggrieved by the decision/order has to file the appeal within 60 days from the date of communication to him of such decision or order. The word used is communication . It implies that the Order-in-Original has to be put to the knowledge of the aggrieved person. Mere dispatch of the order cannot be communication of the decision/order. Further, section 153 speaks about service of order/decision. The word used is service of the order/decision and not dispatch of the order/decision. The words service as well as communication has to be construed to mean that such order is served or put to the knowledge of the aggrieved person. When there is a defect in filing the appeal which can be rectified, the same has to be pointed out to the appellant before the appeal is heard on merits. The Appellant cannot be deprived of the remedy of appeal in a hyper-technical manner. Such ways adopted to increase disposals is deprecated. The appeals are remanded to the Commissioner (Appeals), who shall give an opportunity to the appellant to file an application for condonation of delay - Appeal allowed by way of remand.

Summary

Issues:
- Appeal dismissed as time-barred
- Computation of period of limitation
- Communication of decision/order
- Service of order/decision
- Condonation of delay

Computation of period of limitation:
The appellant filed appeals before the Commissioner (Appeals) against the original authority's order, which were dismissed as time-barred. The appellant argued that the period of limitation for filing the appeal should be calculated from the date of service of the impugned order, not from the date of dispatch. The appellant contended that the appeal was filed within the condonable period even if computed from the date of dispatch. The Tribunal noted that the Customs Act specifies that the appeal period starts from the date of communication of the decision/order to the aggrieved person, emphasizing that mere dispatch does not constitute communication. The Tribunal highlighted the importance of rectifying appeal defects before hearing on merits, ensuring the appellant is not deprived of the right to appeal due to technicalities. Consequently, the Tribunal set aside the orders dismissing the appeals as time-barred and remanded the case to the Commissioner (Appeals) for the appellant to file an application for condonation of delay and a hearing on merits.

Communication of decision/order and Service of order/decision:
The Tribunal analyzed the difference between communication and service of the decision/order. It emphasized that the aggrieved person must be made aware of the Order-in-Original, not just through dispatch but through actual communication or service. The Tribunal interpreted the relevant sections of the Customs Act, highlighting the necessity of the aggrieved party being informed of the decision/order to trigger the appeal period. By underscoring the distinction between dispatch and service, the Tribunal clarified that the appeal timeline should commence from the date of communication or service, ensuring the appellant's right to appeal is protected. The Tribunal criticized disposing of appeals on technical grounds without allowing the appellant the opportunity to rectify any filing defects, emphasizing the importance of substantive justice over procedural technicalities.

Condonation of delay:
The appellant requested remand of the matter to file an application for condonation of delay, as they were not informed of the delay issue before the appeal was heard on merits. The Tribunal acknowledged the appellant's right to seek condonation of delay, especially when the defect can be rectified. Stressing the need to grant the appellant the chance to address any filing discrepancies, the Tribunal ordered a remand to the Commissioner (Appeals) for the appellant to submit an application for condonation of delay. This decision aimed to ensure the appellant's right to appeal was upheld, allowing for a fair hearing on the merits of the case after addressing the delay issue appropriately.

In conclusion, the judgment by the Appellate Tribunal CESTAT CHENNAI highlighted the significance of proper communication and service of orders to trigger the appeal period, criticized dismissing appeals on technical grounds without allowing for rectification of defects, and emphasized the appellant's right to seek condonation of delay to ensure a fair hearing on the merits of the case.