2016 (6) TMI 1102 - AT - Customs

Condonation of delay of 19 years in filing an appeal - Recovery of penalty - it was submitted that, appellant was not in India and was in Oman along with his family. Appellant came to India on 06.11.2010 for a brief period. Appellant through his brother came to know on 30.12.2013 that some Sale Notice has been issued for the Sale of Immovable Property and then he came to India and tried to obtain the copy of the order - It was further submitted that limitation for filing appeal would start from the date of receipt of the copy of the impugned order - Held that - service of the impugned order dated 30.03.1994 on the appellant has been proved by the Department by producing the acknowledgment signed in proof of the receipt though the signature on the acknowledgment is disputed by the appellant. Appellant also produced the copy of the passport to show that at the relevant time he was not in India. Appellant may not be in India but his agent on his behalf can receive the copy of the order and in law it will be deemed to be the service on the appellant. The law cited by the appellant is not applicable to the facts of the case whereas the law cited by the AR is squarely applicable to the facts of the present case. The present appeal is barred by time as the same has been filed after the expiry of more than 19 years and that too without seeking condonation - Appeal dismissed.

Summary

Issues:
1. Imposition of penalty by the Commissioner of Customs
2. Appellant's claim of receiving the impugned order late
3. Verification of the affidavit by the learned AR
4. Appellant's argument of the appeal being within limitation
5. Applicability of case laws cited by both parties
6. Determination of the appeal's maintainability based on service of impugned order

Analysis:
1. The appeal challenged the penalty of ?20,00,000 imposed by the Commissioner of Customs. The appellant filed the appeal against the order dated 30.03.1994, claiming to have received it on 03.01.2014, despite the Commissioner's assertion of sending it on 28.04.1994.

2. The appellant submitted an affidavit stating that he received the Order-in-Original on 03.01.2014 due to being abroad during the relevant period. The learned AR was given time to verify the affidavit and later confirmed that the impugned order was sent by RPAD and received by the appellant on 12.05.1994.

3. Both parties presented their arguments regarding the date of receipt of the impugned order. The appellant contended that the appeal was within limitation as it was filed within the time frame from the date of receipt, relying on various case laws to support this claim.

4. The learned AR referenced legal precedents emphasizing that service of the impugned order through registered post constitutes effective service. The AR's argument was supported by cases highlighting the significance of proper postage and correct address for service to be deemed effective.

5. After considering the submissions and case laws cited by both parties, the Judicial Member concluded that the service of the impugned order on the appellant was proven by the Department. The acknowledgment signed by the appellant, even though disputed, along with the appellant's absence from India, did not negate the deemed service on the appellant through his agent.

6. Ultimately, the Judicial Member found the appellant's appeal to be time-barred, as it was filed after more than 19 years without seeking condonation. The dismissal of the appeal was based on the conclusion that the law cited by the appellant was not applicable to the case, while the law cited by the AR aligned with the facts presented, rendering the appeal not maintainable.