2020 (6) TMI 423 - AT - Customs

Maintainability of appeal - time limitation - appeal rejected on the ground that same has not been filed in time as provided under Section 128 of the Customs Act, 1962 which required that an appeal need to be filed before Commissioner (Appeals) within a period of 60 days from the date of the communication of the order-in-original - HELD THAT - Even if the order of final assessment has been sent by the registered post to their Johari Bazar address same cannot be considered as the proper service of the order as per the provision of Section 153 of the Customs Act, 1962. Since the appellant were not available at the given address, we find that date of receipt of the order need to be taken as 25 July 2015 on which the order was actually been provided to the appellant and statutory time limit may be calculated from this date as provided under Section 128 of the Customs Act, 1962. Since the appeal has been filed well within 60 days from 25 July 2015, the Commissioner (Appeals) has erred in not considering the date of receipt of the order by the appellant as the relevant date for calculating the period of 60 days and therefore we find no merit in the Commissioner (Appeals) order and therefore set aside the same. The appeal is remanded back to the Commissioner (Appeals) for hearing the matter on merit - appeal allowed by way of remand.

Summary

Issues: Appeal against rejection on grounds of limitation under Section 128 of the Customs Act, 1962.

In this case, the appellant filed an appeal against the impugned order-in-appeal, which was rejected by the Commissioner (Appeals) on the basis that it was not filed within the prescribed period of 60 days as per Section 128 of the Customs Act, 1962. The appellant had imported fresh water pearls, and the Department suspected under-invoicing, leading to provisional assessment and subsequent finalization based on testing lab reports. The appellant contended that they changed their business premises during the process, resulting in non-receipt of crucial communications, including the order for final assessment. The Tribunal found merit in the appellant's argument, noting that the order was not properly served at the changed address. The Tribunal held that the date of actual receipt of the order by the appellant should be considered for calculating the 60-day period under Section 128. As the appeal was filed within 60 days of actual receipt, the Commissioner (Appeals) was deemed to have erred in not considering the correct date of receipt. Consequently, the Tribunal set aside the Commissioner (Appeals) order and remanded the matter for a hearing on merit.

This judgment highlights the importance of proper service of orders and the relevance of the actual date of receipt in calculating the statutory time limit for filing appeals under Section 128 of the Customs Act, 1962. The Tribunal's decision emphasizes the need for adherence to procedural requirements while also ensuring that parties are not unduly prejudiced due to administrative lapses. The case underscores the significance of timely and effective communication in legal proceedings, especially in matters involving customs assessments and appeals.