2021 (5) TMI 209 - AT - Customs

Service of notice - change of address which was notified too - notice sent to an old address - delay in filing appeal or not - Classification of imported goods - HELD THAT - The Note given by the Administrative Officer of the Custom House, Chennai also shows that there were instructions given for verification of the new address of the appellant. There is nothing to disbelieve these documents. After intimating the change of address in July 2012, the Department has issued the Order-in-Original in February 2013 to the old address of the appellant. As per Section 128 as well as Section 153 of the Customs Act, 1962, any decision/order has to be communicated/served upon the person to whom it is addressed. In the instant case, there is no actual service or communication of the decision/order upon the appellant - Therefore, the date on which the appellant has come to know about the Order-in-Original has to be considered for computing the period of limitation. When computed from such date, the appeal is filed within the time of sixty days. Thus, there is no delay in filing the appeal. The rejection of the appeal on the ground of time-bar cannot sustain - matter is remanded to the Commissioner (Appeals), who shall decide the case on merits - Appeal allowed by way of remand.

Summary

Issues:
1. Allegation of wrong classification of imported goods and imposition of penalties.
2. Appeal rejection by Commissioner (Appeals) on the ground of limitation.
3. Delay in filing appeal due to non-receipt of Order-in-Original.

Analysis:
1. The appellant, a Custom House Agent, filed a Bill-of-Entry for imports made in 2009/2010 on behalf of a company. Subsequently, a Show Cause Notice was issued, alleging wrong classification of imported goods and penalties. The Original Authority rejected the classification, imposing penalties on both the importer and the appellant. The appeal to the Commissioner (Appeals) was rejected due to a perceived delay in filing.

2. The appellant argued that they were unaware of the Order-in-Original as it was sent to their old address despite them notifying the Department of a change in address in 2012. They only became aware of the order in 2019 through an alert in the EDI system. The Commissioner (Appeals) dismissed the appeal as time-barred, citing the delay.

3. The appellant provided evidence of informing the Department about the address change in 2012, supported by a note for verification of the new address. The Tribunal noted that as per Customs Act provisions, decisions/orders must be communicated to the concerned party. Since there was no actual service or communication of the order to the appellant, the date of their knowledge of the order should be considered for calculating the limitation period. Consequently, the appeal was deemed timely, and the rejection on the ground of time-bar was overturned.

4. The Tribunal held that the rejection of the appeal based on time-bar could not be upheld. The matter was remanded to the Commissioner (Appeals) for a decision on the case's merits, emphasizing the importance of proper communication and service of orders to parties involved in customs proceedings.