2012 (5) TMI 359 - AT - Customs

Waiver of pre-deposit and stay of recovery Held that - appeals filed with the Commissioner (Appeals), the assessee did not mention the date of speed post, nothing stood in the way of the appellate authority verifying the records of the department relating to the above dispatch to find out the correct date of dispatch of the Orders-in-Original. It appears from the impugned order that no attempt was made in this regard. There is yet another infirmity in the appellate Commissioner s order. After holding the appeals to be time-barred, he embarked on discussion on merits and took a view on the substantive issue. If an appeal filed with the Commissioner (Appeals) is really belated beyond the condonable period of limitation prescribed under Sec.128 of the Customs Act, it has only to be rejected on that ground and there shall be no discussion on merits, appeals are allowed by way of remand

Summary

Issues:
Appeal for waiver of pre-deposit and stay of recovery in respect of demands of special additional duty. Appeals against Asstt. Commissioner's orders of finalization of assessments. Time-barred appeals filed before the Commissioner (Appeals). Verification of service of Orders-in-Original. Discussion on merits in time-barred appeals. Remand of the matter to the Commissioner (Appeals).

Analysis:
The appeals sought waiver of pre-deposit and stay of recovery concerning special additional duty demands. The appeals were against the Asstt. Commissioner's orders finalizing provisional assessments on imported goods, leading to the imposition of special additional duty on the assessee. The appeals were filed before the Commissioner (Appeals) after the department issued recovery notices, which were received by the assessee in October 2008, and the appeals were filed in November 2008. However, the appeals were rejected as time-barred and on merits, leading to the present appeals against the decision of the appellate authority.

The counsel for the appellants argued that they did not receive the Asstt. Commissioner's orders initially. When recovery notices were received, the assessee requested copies of the Orders-in-Original from the department, based on which the appeals were filed. The counsel contended that the lower appellate authority did not verify if the copies of the Orders-in-Original were duly issued and served on the assessee. The department, represented by the JDR, stated that the orders were sent to the assessee by speed post, which constitutes service under Sec.153 of the Customs Act, justifying the dismissal of appeals by the Commissioner (Appeals) as time-barred.

The court observed that the Orders-in-Original were dispatched by speed post on a specific date, as mentioned in the Asstt. Commissioner's letter. The appellate authority failed to verify this dispatch date, leading to an error in the order. Moreover, discussing the merits of time-barred appeals is procedurally incorrect, as per Sec.128 of the Customs Act. Consequently, the impugned order was set aside, and the matter was remanded to the Commissioner (Appeals) to verify the dispatch records and determine the effective date of service of the Orders-in-Original for the appeals. The Commissioner (Appeals) was directed to provide a reasonable opportunity for the party to be heard and share the verification report obtained from the Commissionerate.

In conclusion, the appeals were allowed by way of remand with specific directions for the Commissioner (Appeals) to conduct a thorough verification of the dispatch records and issue a speaking order after providing the party with a fair opportunity to present their case. The stay applications were also disposed of in the same order.