2021 (7) TMI 726 - AT - Customs

Service of order - appeal rejected on the ground of time limitation - burden to prove - power of DRI to issue SCN - HELD THAT - From the facts, it is seen that the order-in-original was passed on 22.06.2016. From the dispatch register maintained by department, it is seen that the OIO was dispatched on 12.07.2016. However, there is no supporting evidence to show that the order has been served / communicated on the addressee. Dispatching a letter/consignment by registered post would raise a presumption that it is served upon the assessee. Such presumption is a rebuttal one - In the present case, the appellant has contended that they have not received the Order-in-Original. Then, the burden is on the department to establish that the order was communicated / served on the appellant. The word used in section 128 as well as 153 is communication of the decision, summons and notices. By merely sending a copy of the Order in Original by registered / speed post, the department cannot wash of their hands when they are duty bound to serve the same on the appellant. The department ought to have tracked the consignment and made sure that it has been delivered to the addressee. They can obtain a copy of the same from the website after tracking the consignment and keep the same in the file in the same manner they maintain dispatch register. This would be useful to prove that the Order in Original is served upon the addressee. Jurisdiction - power of DRI to issue SCN - HELD THAT - The matters relating to power of DRI officers to issue SCN were taken up before the Hon ble Supreme Court and many of the adjudication of the cases were kept in abeyance. Taking note of all these facts, it is convincing that appellant has put forward sufficient reason to establish that they were not aware of the adjudication order passed by the original authority and that they were not served with the adjudication order, as contended by department. The impugned order passed by the commissioner (Appeals) holding that the appeal filed is time barred is set aside. The matter is remanded to the Commissioner (Appeals) who shall consider the same on merits - appeal allowed by way of remand.

Summary

Issues:
- Appeal rejection by Commissioner (Appeals) on the ground of limitation
- Service of the Order-in-Original to the appellant
- Power of Directorate of Revenue Intelligence (DRI) to issue show cause notices

Analysis:
1. Appeal Rejection on Ground of Limitation:
The appellant contested the rejection of the appeal by the Commissioner (Appeals) citing it as time-barred. The appellant argued that they were unaware of the Order-in-Original (OIO) passed by the adjudicating authority until they received a letter demanding arrears. The appellant promptly filed an appeal upon becoming aware of the OIO. The department, however, maintained that the OIO was dispatched to the appellant's address on a specific date and thus considered the appeal as time-barred. The Tribunal noted that the burden lies on the department to prove that the OIO was communicated to the appellant. Merely dispatching a letter by registered post does not automatically imply service. The Tribunal emphasized the importance of establishing actual communication with the appellant, rather than relying solely on dispatch records.

2. Service of the Order-in-Original:
The Tribunal highlighted the necessity for the department to ensure effective service of the OIO to the appellant. It was noted that sending a copy of the OIO by registered post does not absolve the department from the responsibility of ensuring its delivery to the addressee. The Tribunal stressed the importance of tracking the consignment to verify delivery and maintaining adequate proof of service. The Tribunal referenced legal precedents that supported the appellant's argument regarding the need for proper communication of decisions, summons, and notices.

3. Power of Directorate of Revenue Intelligence (DRI) to Issue Show Cause Notices:
The case also involved the issue of whether the Directorate of Revenue Intelligence (DRI) had the authority to issue show cause notices. Various legal battles were ongoing regarding this matter, with conflicting judgments from different courts. The Tribunal mentioned a Delhi High Court judgment asserting that DRI lacked the power to issue show cause notices. Additionally, a Supreme Court decision clarified the competence of Customs officers in issuing such notices. Considering the legal complexities and uncertainties surrounding the DRI's authority, the Tribunal acknowledged the appellant's argument that they were not aware of the adjudication order due to the ongoing litigations and uncertainties in the legal landscape.

In conclusion, the Tribunal set aside the Commissioner (Appeals)'s decision, allowing the appeal to proceed on merits. The case was remanded to the Commissioner (Appeals) for a fresh consideration, emphasizing the importance of evaluating the matter comprehensively, especially in light of the uncertainties surrounding the DRI's authority to issue show cause notices.