2008 (2) TMI 582 - HC - Customs

Barred by Limitation- The appeal preferred by the petitioner herein was dismissed by the Commissioner of Customs and Central Excise (Appeals) Goa on the ground that the appeal was barred by limitation. Held that- Considering the first proviso to Section 120(A), the Commissioner (Appeals), is directed to hear the matter and dispose of the same according to law.

Summary

Issues:
- Appeal dismissal on the ground of limitation under Section 128 of the Customs Act.
- Requirement of proper service of order or decision under Section 153 of the Customs Act for filing an appeal.
- Interpretation of Section 131(A) of the Customs Act regarding exclusion of time for obtaining a copy of the order.
- Condonation of delay in filing an appeal under Section 120(A) of the Customs Act.

Analysis:

Issue 1: Appeal Dismissal on Ground of Limitation
The petitioner's appeal was dismissed by the Commissioner of Customs and Central Excise (Appeals) Goa citing it as barred by limitation under Section 128 of the Customs Act. Section 128(1) allows for an appeal within sixty days from the date of communication of the decision or order. The petitioner claimed that the order was not properly served as per Section 153 of the Act, which is crucial for determining the start of the appeal period.

Issue 2: Proper Service of Order for Filing an Appeal
The petitioner argued that despite notifying the authorities of a change in address, the communications and orders were sent to the old address, resulting in non-delivery. The Act mandates service of order or decision by specific means, and the limitation for filing an appeal starts from the date of such service. Failure to serve the order as prescribed by law can impact the commencement of the appeal period.

Issue 3: Interpretation of Section 131(A) for Exclusion of Time
Section 131(A) of the Act allows for the exclusion of time if the party was not furnished with a copy of the order when the notice of the order was served. This provision aims to ensure fairness by excluding the time required to obtain a copy of the order when service is not properly executed. The duty of the revenue authorities to serve the order is emphasized, and the exclusion of time is crucial for computing the limitation period under Section 128.

Issue 4: Condonation of Delay in Filing Appeal
In this case, the court found that there was a lack of proper service of the order as required by Section 153. As a result, the question of excluding time under Section 131(A) did not arise. The court highlighted that the petitioner received the copy of the order during the court proceedings, and the delay in filing the appeal was condoned under Section 120(A) due to sufficient cause being established.

In conclusion, the court set aside the impugned order, condoned any delay in filing the appeal, and directed the Commissioner (Appeals) to hear and dispose of the matter according to law. The petitioner's address for all future communications related to the appeal was established, and the rule was made absolute in favor of the petitioner.