2021 (12) TMI 1023 - AT - Customs

Condonation of delay in filing appeal before the Commissioner (appeals) - EPCG License - head race tunnel - EPCG License / authorization for duty saved value for import of capital goods - non-compliance with the requirement to furnish prescribed documents for the same within 3 months from the expiry of the block years - N/N. 97/2004-Cus dated 17.09.2004 - HELD THAT - The EPCG authorization was issued in favour of the appellant way back in the year 2004. Under the said authorization, appellant imported a machine by saving a custom duty of ₹ 9,56,32,082/- which was against the license value of ₹ 76,50,566.56. However, it is apparent that the completion of export obligation was never brought to the notice of the concerned Department during the time stipulated in the Notification No.097/2004-Cus dated 17.09.2004, as is apparent from the letter dated 21.04.2015 as produced by the appellant. Perusal of this letter, in addition, clarifies the acknowledgment of the appellant about receiving the Show Cause Notice dated 25.03.2013 on 30.03.2015. Hence the appellant s own document is sufficient to falsify the appellant s submission that Show Cause Notice was never received by the appellant. By the time of reply dated April 21, 2015 even the O-I-O dated 21.03.2014 was passed. There is no cogent evidence about the proof of service, nor there is cogent explanation as to why the O-I-O was served upon Delhi address despite that the address mentioned by the appellant for its registered office was that of Bangalore. It is further observed that there is no denial about the date of receipt of recovery proceedings and receipt of O-I-O by the appellant on 6th January, 2017. Commissioner (Appeals) is observed to have been silent about any cogent reason for not considering 6.01.2017 as the date of receipt. Accordingly, matter is remanded back to the Commissioner (Appeals). In accordance whereof the Commissioner (Appeal) has no authority to condone the delay of more than 90 days from the date of communication of the order assailed before him. There is no infirmity in the order under challenge but in view of the discussion and keeping in view that the appeal before Commissioner (Appeals) was filed well within the period of 90 days from 6th January, 2017, the date of communication of Order-in-Original to the appellant, the matter is remanded back to Commissioner (Appeals) directing him to rehear the matter after condoning the delay of 28 days and to adjudicate denovo on the merits of the case - appeal allowed by way of remand.

Summary

Issues:
1. Compliance with export obligation under EPCG License.
2. Service of Show Cause Notice and Order-in-Original.
3. Appeal process and plea of limitation.

Compliance with export obligation under EPCG License:
The appellant was awarded a contract for civil and hydro mechanical works and imported machinery under an EPCG License. The Department observed non-compliance with the export obligation, leading to a show cause notice proposing penalties. The appellant argued non-receipt of the notice and Order-in-Original, emphasizing the technical grounds of service and the lack of proof of delivery. However, the Tribunal found evidence contradicting the appellant's claim of non-receipt, noting correspondence acknowledging the notice and order. The Tribunal emphasized the appellant's responsibility to fulfill obligations and remanded the matter for further consideration.

Service of Show Cause Notice and Order-in-Original:
The appellant contested the service of the Show Cause Notice and Order-in-Original, citing lack of proof and incorrect address usage. The Department accused the appellant of intentional avoidance and habitual default. The Tribunal noted discrepancies in the Department's evidence of service, emphasizing the importance of proper service under the Customs Act. The Tribunal highlighted the need for clear evidence of communication and remanded the case back for proper consideration.

Appeal process and plea of limitation:
The appellant raised a plea of limitation due to delayed receipt of the Order-in-Original. The Tribunal referenced a Supreme Court ruling setting a 90-day limit for appeal delays. Despite finding no fault in the original order, the Tribunal remanded the case to the Commissioner (Appeals) for a rehearing, allowing for a 28-day delay in filing the appeal. The Tribunal stressed adherence to legal timelines and due process in the appeal proceedings.

In conclusion, the Tribunal set aside the original order, allowing the appeal by remanding the case for further review. The judgment emphasized the importance of fulfilling export obligations, proper service of legal notices, and adherence to legal timelines in appeal processes.