2022 (6) TMI 1090 - AT - Customs

Delay in filing of appeal before Commissioner (Appeal) - Period of limitation for date of assessment of Bill of entry - to tbe counted from the date of communication of order or from the date of upload on the website - rejection of appeal on the ground that the same is hit by period of limitation prescribed under Section 128 of the Customs Act - HELD THAT - The provisions of Section 128 of the Customs Act, would clearly indicate that limitation would be counted from the date of communication to him (person aggrieved) of such decision or order. Secondly, the ratio of the referred judgment also indicates that order of assessment/re-assessment is an appealable order - Reliance can be placed in the case of ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV 2019 (9) TMI 802 - SUPREME COURT - This being the facts on record and the provision of law, the service of copy of the order on dated 12.01.2018 is supposed to be taken as the date of communication of the order, in which event the delay was only of 18 days concerning which satisfactory explanation in the delay condonation petition was afford by the Appellant as has been noted by the Commissioner (Appeals) in para 7 of his order i.e. Order-in-Appeal under challenge. Additionally the order passed by the First Appellate Authority under RTI Act, 2005 on dated 22.10.2021, being taken as additional piece of evidence since in the nature of public documents, clearly reveal that date of communication of order was 12.01.2018 and the Respondent- Department had never been in the practice of issuing copy of finally/provisionally assessed bill of entry to anyone, as the same has been uploaded in their website link (para 4 of the order of the appellate authority). This being the facts on record, it is opined that communication of the decision/order was made on 12.01.2018 and the date of uploading in the link provided by the Respondent- Department, cannot be taken as date of communication of the order besides the fact that dispute concerning non-availability of the order in the said link is also noticeable in the RTI order dated 22.10.2021. Moreover, no Court would presume such a document uploaded in the website as genuine unless it is a public document containing seal and signature of the public authority or its certified copy that would meet the requirement of Section 79 of the Indian Evidence Act. It is considered appropriate to allow the appeal and the matter remanded back to the Commissioner of Customs (Appeals), Mumbai-I to pass an order in conformity to the dictate of Section 128A(4) of the Customs Act - appeal allowed by way of remand.

Summary

Issues:
1. Appeal challenging the order refusing relief based on limitation under Section 128 of the Customs Act.

Analysis:
The appeal before the Appellate Tribunal CESTAT Mumbai challenged the order passed by the Commissioner of Customs (Appeals), Mumbai-I, which refused relief to the appellant on the grounds of being time-barred under Section 128 of the Customs Act. The Commissioner (Appeals) had highlighted the limitation period of 60 days for filing an appeal, extendable by a further 30 days on showing sufficient cause. The appellant had filed the appeal after a delay of 372 days, well beyond the condonable period. The Commissioner (Appeals) had relied on the provisions of Section 128(1) and cited a Supreme Court judgment emphasizing the appealability of self-assessment orders under the Act.

The Tribunal examined the relevant provisions of Section 128 of the Customs Act and the Supreme Court judgment to determine the date of communication of the order to the appellant. The Tribunal noted that the date of communication was crucial for calculating the limitation period. The appellant argued that the order was communicated on 12.01.2018, while the Respondent-Department claimed that the order was available on their website link, implying communication through the link. The Tribunal emphasized that mere uploading on a website does not constitute valid communication unless it meets the requirements of a public document under the Indian Evidence Act.

Based on the facts and legal provisions, the Tribunal concluded that the date of communication was 12.01.2018, and the dispute regarding the order's availability on the website was evident from an RTI order. The Tribunal held that the appeal was within the condonable period of limitation as satisfactory explanation for the delay was provided. Consequently, the Tribunal allowed the appeal, setting aside the order of the Commissioner of Customs (Appeals) and remanding the matter for re-hearing in accordance with Section 128A(4) of the Customs Act.

In summary, the Appellate Tribunal CESTAT Mumbai allowed the appeal challenging the order refusing relief based on limitation under Section 128 of the Customs Act. The Tribunal emphasized the importance of the date of communication of the order, ruled in favor of the appellant's explanation for the delay, and remanded the matter for re-hearing by the Commissioner (Appeals) in line with the legal provisions.