2023 (6) TMI 1256 - AT - Customs

Service of SCN - SAD refund - whether the appellant is served with Order-in-Original in time as held in the impugned Order-in-Appeal? - HELD THAT - The sanction was granted as early as 11.03.2010, and the receipt of the refund has also been acknowledged by the assessee in its various letters addressed to the Revenue authorities, including the Commissioner of Customs. Hence, to say that the sanction was ordered as per the order in original is not correct. This is the usual practice by the original authority wherein the Order-in-Original itself contains the printed number of the order as well as the date. There is some insertion by hand, but unfortunately, there are no initial for carrying out the correction or insertion which is essential; hence, the said insertions do not impress us. But in any case, as it is observed that the date of sanction was much earlier, the contentions of the assessee is accepted that it did not receive the Order-in-Original until 06.01.2011, when it had an occasion to meet the Commissioner of Customs (Export). These facts are not disputed by the Revenue - the impugned order, insofar as it relates to the issue on limitation, deserves to be set aside as unsustainable. The first appellate authority has not given any findings on the merits of the case, though he has discussed about the same in the impugned order - it is deemed appropriate that matter remanded back to the file of the first appellate authority for disposal of the appeal on merit alone, since it is satisfied that there is no delay in filing the appeal before the first appellate authority. The appeal of the appellant stands allowed by way of remand.

Summary

Issues involved: Appeal against dismissal of refund claim on limitation without considering merits.

Summary:
The appeal was filed against the Order-in-Appeal dated 01.10.2013 passed by the Commissioner of Customs (Appeals), Chennai, dismissing the appeal on limitation without delving into the merits of the case. The appellant had filed a refund claim of SAD, which was partially granted by the adjudicating authority. The appellant, claiming non-receipt of the Order-in-Original, requested the Commissioner of Customs for the balance refund. The first appellate authority rejected the appeal citing that the appellant had received the partial refund and the address for communication was the same. The main issue before the court was whether the appellant was served with the Order-in-Original in time as held in the impugned Order-in-Appeal.

Upon review, the court found that the sanction for refund was granted much earlier than the Order-in-Original date, and the appellant had acknowledged receipt of the refund in various letters. The Order-in-Original lacked essential details such as a number and date, and the corrections made were not properly authenticated. The court accepted the appellant's claim of non-receipt of the Order-in-Original until a later date. Consequently, the impugned order on limitation was set aside as unsustainable. The matter was remitted back to the first appellate authority for disposal on merit alone, emphasizing a timely resolution within six months while ensuring principles of natural justice.

In conclusion, the impugned order was set aside, and the appeal was allowed by way of remand for further consideration on the merits of the case, with directions for a prompt resolution by the first appellate authority.