2018 (5) TMI 361 - AT - Customs

Time Limitation in filing appeal - appellant has stated that they were not served with the copy of the order in original and only after receiving the detention notice dated 22.5.2012, they came to know that such an order has been passed - Held that - The appeal has been filed within 60 days from 6.7.2012, when the appellant received the copy of the order in original subsequently. Thus, appeal has been filed within the time - Taking into consideration the peculiar facts of the case as well as the admitted fact that the copy of the order in original was returned undelivered, we are of the view that the appellant has to be given a further chance to contest the issue on merits - appeal allowed by way of remand.

Summary

Issues:
1. Validity of demand notice and hearing notice.
2. Compliance with principles of natural justice.
3. Timeliness of filing appeal.
4. Service of order in original.
5. Export obligation fulfillment.

Analysis:

Validity of Demand Notice and Hearing Notice:
The appellants were issued an EPCG license for importing capital goods under a specific notification. They failed to produce proof of fulfilling the export obligation within the prescribed period, leading to a demand notice for customs duty payment. The appellant argued that they did not receive the demand notice or hearing notice due to a change in their office address. The Commissioner (Appeals) dismissed the appeal citing a delay in filing. However, the Tribunal found that the appellant had not been served the order in original, leading to a lack of opportunity to contest the issue on merits. Thus, the appeal was remanded for further consideration.

Compliance with Principles of Natural Justice:
The appellant contended that the order was not served at their factory address as required by the EPCG license. The department dispatched notices to the old address, leading to a lack of communication. The Tribunal noted the failure of the department to provide evidence of serving the order in original. This lack of proper service violated the principles of natural justice, warranting a reevaluation of the case on its merits.

Timeliness of Filing Appeal:
The Commissioner (Appeals) dismissed the appeal based on a delay of 424 days beyond the stipulated 60-day period. However, the Tribunal found that the delay was due to the appellant not receiving the order in original promptly. Once the appellant obtained the order, they filed the appeal within 60 days, as evidenced by the record. The Tribunal considered the peculiar circumstances and allowed the appeal by remanding it for further review.

Service of Order in Original:
The appellant argued that the order in original was not served upon them, as evidenced by the return of the order to the customs house undelivered. The Tribunal accepted this argument, emphasizing that without proper service, the appellant could not be held accountable for the delay in filing the appeal. The lack of evidence of service raised doubts about the validity of the demand and the subsequent actions taken by the department.

Export Obligation Fulfillment:
The appellant claimed to have fulfilled the export obligation and obtained the necessary certificates from the licensing authority. This fulfillment was a crucial aspect of the case, as it directly related to the demand for customs duty payment. The Tribunal acknowledged this claim and directed the Commissioner (Appeals) to consider the appeal on its merits, taking into account the appellant's compliance with the export obligation.

In conclusion, the Tribunal set aside the impugned order, allowing the appeal by remanding it for a thorough review by the Commissioner (Appeals) to ensure justice and fairness in the proceedings.