2021 (3) TMI 1203 - AT - Customs

Condonation of delay in filing appeal - appeal has been filed after lapse of 113 days from the date of communication of the order - rejection of appeal on the ground of time limitation - restriction provided under first proviso to sub-clause (a) of clause (1) to Section 129A of the Customs Act, 1962 - Smuggling - Cigarettes - Saffron - absolute confiscation - penalty - HELD THAT - As per the above proviso, no appeal would lie before the Tribunal in respect of any order passed by Commissioner (Appeals) if such order relates to any goods imported or exported as baggage. In the present case, apart from confiscating the goods in the baggage, there is also an issue of smuggling of gold. Further, the order passed by the Commissioner (Appeals) does not touch the merits of the case and is confined to the time-bar aspect in filing the appeal. So it would fall under sub-clause (b) of clause (1) of Section 129A of the Customs Act, 1962. The appellant has denied receipt of the Order in Original by registered post and has affirmed this by affidavit. When a letter is sent by registered post a presumption is to be drawn that it has been received by the addressee. However, such presumption is a rebuttable presumption. A negative fact can be established only by affidavit. When the appellant has affirmed the negative by filing an affidavit, the burden shifts on the department to establish as to why they served the registered letter to Shri S. Mujahian. Department has establish details that the person who signed the acknowledgment card is known to the appellant or that they have served the letter on the person who is duly authorized by the appellant. The department has failed to establish these facts. The only conclusion that can be arrived therefore is that the order is served on some person other than the appellant - When the registered post is received by some person unknown to the appellant it cannot be said that the order is served or communicated to the appellant. The consultant of the appellant has obtained a copy of the Order in Original on 16.12.2019. The appeal then has to be filed within 60 days from 16.12.2019. The appellant has filed the appeal before Commissioner (Appeals) on 9.3.2020 which is beyond 60 days period. The Commissioner (Appeals) can condone delay of 90 days. The delay in this case would be less than 30 days. So when computed from 16.12.2019, the appeal has been filed within the time limit condonable by Commissioner (Appeals). The rejection of appeal on the ground of time-bar cannot sustain and requires to be set aside - the appeal is remanded to the Commissioner (Appeals) who shall consider the application for delay - Appeal allowed.

Summary

Issues: Appeal filed beyond the period of limitation; Whether the appeal lies before the Tribunal due to restrictions under Section 129A of the Customs Act, 1962; Service of Order in Original on the appellant.

Issue 1: Appeal filed beyond the period of limitation
The appellant filed an appeal against the order for confiscation of goods and imposition of penalty, which was rejected by the Commissioner (Appeals) as time-barred. The appellant received the Order in Original on 16.12.2019, but the Commissioner computed the limitation from 20.11.2019 based on an acknowledgment card signed by an unknown person. The appellant argued that the appeal was filed within 85 days from the date of receipt by the consultant. The department contended that the appeal was filed after 113 days from the date of communication of the order, exceeding the maximum condonable period of 90 days. The Tribunal found that the appeal was filed within the condonable period and remanded the matter to the Commissioner (Appeals) for hearing on merits.

Issue 2: Appeal lies before the Tribunal under Section 129A of the Customs Act, 1962
The Tribunal raised a doubt whether the appeal would lie before the Tribunal under Section 129A due to restrictions provided in the first proviso. The proviso states that no appeal shall lie in respect of any order passed by Commissioner (Appeals) if it relates to goods imported or exported as baggage. In this case, besides confiscation of goods, there was an issue of smuggling gold, and the Commissioner's order focused on the time-bar aspect rather than the case's merits. Thus, the appeal fell under sub-clause (b) of clause (1) of Section 129A.

Issue 3: Service of Order in Original on the appellant
The department claimed that the Order in Original was sent on 18.11.2019 and received by the appellant on 20.11.2019 based on an acknowledgment card signed by S. Mujahian. However, the appellant denied receiving the order and affirmed this through an affidavit. The burden shifted to the department to establish why the letter was served to S. Mujahian. As the department failed to prove the relationship between S. Mujahian and the appellant, it was concluded that the order was served on someone other than the appellant. The appellant filed the appeal within the condonable period from the date of receipt by the consultant, and the rejection on the ground of time-bar was set aside.

In conclusion, the Tribunal set aside the rejection of the appeal on the ground of being time-barred, remanding the matter to the Commissioner (Appeals) for consideration of the delay application and a decision on the merits of the case.