2022 (12) TMI 1154 - AT - Customs

Condonation of delay in filing appeal - rejection of appeal by resorting to the provisions Section 128 of the Customs Act, 1962 since according to learned Commissioner the appeal has been filed beyond the condonable period of 30 days as stipulated in section 128 ibid - HELD THAT - Although the Appellant time and again requested the department for personal hearing, granting of refund etc. etc but in response to none of these communication the department replied that the Order-in- Original has already been passed. Since they have got the copy of the adjudicating order only on 06.03.2020 therefore they had time to file appeal before the learned Commissioner upto May, 2020 but since that was Covid time therefore vide Taxation and other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 r/w Notification dated 30.09.2020 the time was got extended till 31.12.2020 and admittedly the appeal was filed by the appellant on 30.12.2020. On a specific direction issued to the department by this Tribunal vide order dated 17.11.2022 to place on record the document as to when the Order-in-Original was sent and served on the appellant, learned Authorised Representative placed on record communication dated 2.11.2022 received by him from concerned Commissionerate (filed by the learned authorised representative on 25.11.2022) stating that the file concerning the appellant is not traceable in the section and hence no comments can be offered. Since the department has failed to prove/place on record anything contrary to the claim of the appellant, therefore I have left with no other option but to accept the version of the appellant which is well supported by evidence and seems to be true. As the date of dispatch of the order is not available with the department therefore the limitation will start running from the date when the same was received by the Appellant which is 06.03.2020 and after taking into account the Taxation Act, 2020 (supra) read with notification dated 30.09.2020 which extended the time till 31.12.2020 in all the cases due to covid pandemic, the appeal filed on 30.12.2020 was filed well within limitation before the learned Commissioner. Since the appeal has not been decided on merits by the 1st Appellate Authority therefore the same is remanded to the learned Commissioner with a direction to decide the same on merits after following the principle of natural justice and providing sufficient opportunity of hearing. Appeal allowed by way of remand.

Summary

Issues:
Appeal assailing order of Commissioner of Customs (Appeals) on the ground of limitation without going into merits.

Analysis:
The appeal was filed challenging the order of the Commissioner of Customs (Appeals) rejecting the appeal on the basis of limitation without delving into the merits. The appellant argued that there was no delay in filing the appeal as they received the Order-in-Original dated 31.3.2017 only on 06.3.2020. The appellant contended that the limitation period should be counted from the date of receipt of the order. Despite being in touch with the department between March 2017 and 06.3.2020, the appellant claimed they were not informed about the adjudicating order. The appellant provided a detailed timeline of events from the date of the adjudicating order to the filing of the appeal before the Commissioner. The appellant argued that they had time to file the appeal until May 2020, extended to 31.12.2020 due to the Covid pandemic.

The Tribunal directed the department to provide evidence of when the Order-in-Original was sent and served on the appellant. However, the department failed to produce any evidence, leading the Tribunal to accept the appellant's version supported by evidence. As the date of dispatch of the order was not available, the Tribunal determined the limitation period started from the date of receipt by the appellant on 06.03.2020. Considering the Taxation Act, 2020, and the notification extending the time due to the Covid pandemic, the Tribunal concluded that the appeal filed on 30.12.2020 was within the limitation period before the Commissioner.

The Tribunal set aside the impugned order and allowed the appeal, remanding it to the Commissioner to decide on merits after ensuring natural justice and providing adequate hearing opportunities. The appeal was allowed by way of remand, with the decision pronounced in open court on 20.12.2022.