2013 (11) TMI 335 - AT - Customs

Stay application - Ex parte order passed - Appeal gainst order dismissed on ground of limitation - Held that - It is a matter of fact that the Order-in-Original was passed on 20.1.2009 and issued to the appellants on 4.3.2009 through Speed Post. It is an admitted fact that service through Speed Post is not a proper service. Therefore, it is presumed that the Order-in-Original was not served on the appellants. When the Order-in-Original was not served on the appellants and they came to know about the passing of the Order-in-Original after getting recovery notice and applied for supply of Order-in-Original and immediately on receiving the Order-in-Original they filed appeal within 60 days, therefore, they filed the appeal within time. Therefore, the impugned order is set aside. Further, we find that the adjudication order itself is an ex-parte one. Therefore, it could be proper in the interest of justice to remand the matter to the original adjudicating authority to consider the contention of the appellants on merits. Therefore, we allow the appeal by way of remand to the adjudicating authority with a direction to the appellants to appear before the adjudicating authority within 30 days to fix the date of final hearing, from the date of communication of this order - Decided in favour of assessee.

Summary

Issues:
1. Appeal dismissed on the ground of limitation.
2. Service of Order-in-Original through Speed Post.
3. Appeal filed within the statutory time limit.
4. Proper service of legal documents.
5. Ex-parte adjudication order.
6. Remand to the original adjudicating authority for fresh consideration.

Analysis:

Issue 1: Appeal dismissed on the ground of limitation
The appellants filed an appeal along with a stay application against an impugned order that was dismissed on the ground of limitation. The counsel for the appellants argued that the Order-in-Original was passed on a specific date but was not received by the appellants due to a change in their business address. They only became aware of the order when they received a recovery notice in 2011. The Commissioner (Appeals) dismissed the appeal as time-barred without verifying the service of the Order-in-Original. The Tribunal found this decision incorrect in the eyes of the law and set aside the impugned order.

Issue 2: Service of Order-in-Original through Speed Post
The Order-in-Original was issued to the appellants through Speed Post, which the Tribunal acknowledged as not being a proper service method. Since the appellants did not receive the Order-in-Original and only learned about it later, the Tribunal presumed that the order was not served on them. Consequently, the Tribunal considered the appeal as filed within the statutory time limit.

Issue 3: Appeal filed within the statutory time limit
Despite the delay in receiving the Order-in-Original, the appellants filed the appeal within 60 days of obtaining the document. The Tribunal recognized this timely filing and set aside the impugned order that treated the appeal as time-barred.

Issue 4: Proper service of legal documents
The Tribunal emphasized that service through Speed Post was not a proper method of service. As the appellants were not served the Order-in-Original, the Tribunal concluded that the appeal was filed within the required time frame.

Issue 5: Ex-parte adjudication order
The Tribunal noted that the adjudication order was passed ex-parte, meaning the appellants were not given an opportunity to be heard by the adjudicating authority. In the interest of justice, the Tribunal decided to remand the matter to the original adjudicating authority for fresh consideration.

Issue 6: Remand to the original adjudicating authority for fresh consideration
The Tribunal allowed the appeal by way of remand to the adjudicating authority with a direction for the appellants to appear within 30 days to fix the date of the final hearing. The stay application was also disposed of in the above terms.