2023 (6) TMI 556 - AT - Customs

Maintainability of appeal - time barred u/s 128 of Customs Act, 1962 - exporter has not realized the foreign exchange involved on the goods exported under the said Shipping bills as per Rule 16(A) (1) and (2) of Customs, Central Excise and Duties and Service Tax Drawback Rules, 1995 - HELD THAT - Section 128 of the Customs Act, 1962 provides for filing of appeals before Commissioner (Appeals). According to the said section any person aggrieved by any decision or order may appeal to the Commissioner (Appeals) within 60 days from the date of the communication to him of such decision or order. emphasis supplied This section bars the Commissioner (Appeals) from condoning the delay beyond the period of 30 days. So what is relevant is the date of communication of the order of the adjudicating authority. Section 128 ibid which has been relied upon by the learned Commissioner (A) for dismissing the appeals on the ground of limitation, uses the words date of communication of order, which in my view is 13.9.2019 as the department failed to produce on record any evidence including the tracking record in support of their submission that the adjudication order was sent to the appellant immediately after the passing of the Order-in-Original. Merely by sending a copy of the Order-in-Original by speed post, the department cannot be said to have discharged their liability as they have to communicate the same to the appellant which means it has to be served on the assessee as the wording used in Section 128 ibid is date of communication of order - In the instant case the appellant received copy of the Order-in- Original on 13.9.2019 the appeal before the learned Commissioner (A) was filed on 24.10.2019 which is well within a period of three months from the date of receipt/communication of the Order-in-Original. Therefore, the Commissioner (Appeals) has erred in rejecting the appeal on the ground of time bar. The matter is remanded back to the Commissioner (Appeals) to decide the same on merits after following the principle of natural justice within a period of three months from the date of receipt of this order. The appeal is allowed by way of remand.

Summary

Issues involved:
The appeal assails the order of Commissioner of Customs (Appeals) dismissing the appeal as time-barred under section 128 of the Customs Act, 1962.

Issue 1: Appeal dismissal on grounds of limitation
The issue is whether the Commissioner was justified in dismissing the appeal as time-barred under section 128 of the Customs Act, 1962.

The demand cum show cause notice was issued to the appellant on 31.8.2017 for a drawback amount of Rs.1,58,101/- due to alleged non-realization of foreign exchange on exported goods. The adjudicating authority confirmed the demand and imposed a penalty on 20.3.2018. The appellant filed the appeal on 24.10.2019, beyond the prescribed 90-day period, leading to its rejection by the Commissioner on grounds of limitation without delving into the merits of the case.

Issue 2: Date of communication of order
The crux of the issue lies in determining the date of communication of the adjudicating order to calculate the period of limitation for filing the appeal.

The appellant contended that they received the copy of the order-in-original on 13.9.2019 when they visited the authority's office, and subsequently filed the appeal on 24.10.2019, well within the limitation period. The department failed to provide evidence of timely communication of the order, while the appellant argued that the period of limitation should commence from the date they received the certified copy of the order on 13.9.2019, not from the date of the adjudicating order on 28.3.2018.

Decision:
The Tribunal found that the Commissioner erred in dismissing the appeal on grounds of limitation. The department's failure to produce evidence of timely communication of the order led to the conclusion that the date of communication was 13.9.2019 when the appellant received the order. Relying on precedents, the Tribunal emphasized that mere dispatch of the order by speed post does not constitute communication, which necessitates actual service on the assessee. Consequently, the impugned order was set aside, and the matter remanded to the Commissioner for a decision on merits within three months from the date of the Tribunal's order. The appeal was allowed by way of remand.