2023 (3) TMI 181 - AT - Customs

Maintainability of appeal - rejection on the ground of time limitation - recovery of drawback for failure to produce evidence of receipt of export proceeds in foreign exchange - HELD THAT - The learned Commissioner (Appeals) has reproduced Section 153 of the Customs Act, 1962, which provides for services of order or decision. It is provided that the order etc. should be served by sending it by registered post or by such courier as may be approved by the Commissioner and if it is not possible to serve the order etc. in the said manner, then by affixing it on notice board of the Custom House. The learned Commissioner (Appeals) has held that the filing of appeal was time barred. However, on which date the concerned Order-in-Original was sent by registered post to the appellant or on which date the said Order-in-Original was affixed on the notice board of the Custom House, has not been stated in the impugned order. The impugned order not found to be reasonable because the date from which period of 90 days is reckoned with is missing. Matter remanded to the appellate authority to decide the issue on merit - appeal allowed by way of remand.

Summary

Issues:
- Appeal against rejection of appeal as time-barred under Customs Act, 1962

Analysis:
The appeal before the Appellate Tribunal CESTAT MUMBAI arose from an Order-in-Appeal dated 20.09.2019, where the learned Commissioner (Appeals) had rejected the appeal as time-barred under the Customs Act, 1962. The appellant, an exporter, had failed to produce evidence of receipt of export proceeds in foreign exchange, leading to proceedings for recovery of drawback being initiated against them.

During the hearing, the Shipping Manager of the appellant stated that they were unaware of the proceedings as they had not received a copy of the show cause notice or the Order-in-Original. It was only when subsequent consignments were stopped from export that they became aware of the situation. Subsequently, they obtained a copy of the Order-in-Original from records and filed an appeal.

The learned Authorized Representative argued that the appeal was filed beyond the 90-day limit prescribed under Section 128 of the Customs Act, 1962, as the Order-in-Original was dated 27.03.2018, and the appeal was filed on 21.06.2019. Consequently, the learned Commissioner (Appeals) had rightly rejected the appeal as time-barred.

Upon careful consideration of the submissions and records, the Appellate Tribunal found that the impugned order lacked clarity regarding the date on which the Order-in-Original was sent to the appellant, which is crucial for determining the start of the 90-day period for filing an appeal. As per Section 153 of the Customs Act, 1962, the service of order or decision should be done through registered post or an approved courier, or by affixing it on the notice board of the Custom House. Since the date of service was not specified in the impugned order, the Tribunal deemed it unreasonable and set it aside. The matter was remanded to the appellate authority for a decision on merit.

Ultimately, the appeal was allowed by way of remand, emphasizing the importance of clarity and adherence to procedural requirements in such legal matters.