2023 (12) TMI 14 - AT - Customs

Condonation of delay in filing appeal - whether the appeal filed by the appellant was filed within the prescribed period of limitation specified under Section 128 of the Customs Act, 1962 or not? - HELD THAT - The period of limitation provided under the said Section 128 is sixty days from the date of communication of decision or order . On one hand the appellant claims that the Order-in-Original dated 06.07.2018 was communicated to him for the very first time only on 05.05.2022 when copy of the said order was made available to him on request being made whereas on the other hand the impugned order records that the said order was dispatched by speed post vide letter dated 06.07.2018. In the present case, since it was the specific case of the appellant before the Commissioner (Appeals) that the speed post was not delivered to him, hence it was incumbent upon the revenue to bring on record the date of speed post and the acknowledgement of such speed post. However, despite such an specific assertion being made, the impugned order neither records the date on which the speed post was sent/dispatched nor the date of acknowledgment of the speed post. In absence of the date of dispatch by speed post and date of acknowledgement, the revenue has clearly failed to discharge the initial onus and therefore it cannot be said that the order dated 06.07.2018 was communicated to the appellant at any time on or around 06.07.2018. Further, in the facts and circumstances of the present case, when the appellant changed its address on account of closure of business, he had no means to be aware of the order and has nothing to gain by not filing the appeal timely - the date of communication of the order is to be considered as 05.05.2022, when the copy of order dated 06.07.2018 was provided on the request made by the appellant. As the revenue failed to comply with Section 153 and has not brought on record any other date prior to 05.05.2022, when the order was served in any of the modes specified under Section 153. The matter is remanded back to the Commissioner (Appeals) to decide the matter on merits after giving personal hearing to the appellant - the appeal is allowed by way of remand to the Commissioner (Appeals) for decision on merits.

Summary

Issues involved:
The appeal filed by the appellant was dismissed by the Commissioner (Appeals) as barred by limitation. The main issue was whether the appeal was filed within the prescribed period of limitation specified under Section 128 of the Customs Act, 1962.

Details of the Judgment:

Issue 1: Communication of the Order

The appellant claimed that the Order-in-Original dated 06.07.2018 was communicated to him for the first time on 05.05.2022. On the other hand, the impugned order stated that the said order was dispatched by speed post on 06.07.2018. The Tribunal noted that the burden to demonstrate the dispatch by speed post with acknowledgement due was on the revenue. Since the revenue failed to provide the date of dispatch and the acknowledgement of the speed post, it could not be said that the order was communicated to the appellant around 06.07.2018.

Issue 2: Compliance with Section 153 of the Customs Act

The Tribunal referred to Section 153 of the Act, which specifies modes for service of notice, order, etc. The appellant had contended that the speed post was not delivered to him. Despite this assertion, the revenue did not provide evidence of the date of dispatch or the acknowledgement of the speed post. The Tribunal held that the revenue failed to comply with Section 153 and did not prove that the order was served before 05.05.2022.

Issue 3: Decision and Remand

Considering the lack of evidence regarding the communication of the order and the failure to comply with Section 153, the Tribunal set aside the impugned order and remanded the matter back to the Commissioner (Appeals) for a decision on merits after giving the appellant a personal hearing. The appellant was also instructed to cooperate for the early disposal of the matter.

Conclusion:
The appeal was allowed by way of remand to the Commissioner (Appeals) for a decision on merits, highlighting the importance of complying with procedural requirements and ensuring proper communication of orders to the concerned parties.