2023 (4) TMI 1149 - AT - Customs

Maintainability of appeal - appeal dismissed on the ground of time limitation - appeal filed well within 60 days of the said first receipt of the order in original or not - HELD THAT - The Revenue is not in a position to either confirm or deny the receipt of the Order-in-Original by the Appellant. Other than pointing out the despatch number and date of despatch as indicated in xerox copy of the Order-in-Original on record. Obviously in taxing statutes, in particular, no presumption can be rested upon the delivery and service of an order and the fact need to be expressly established. In view of the Revenue, not being able to demonstrate anything, to the submissions made by the Learned Advocate and the Learned Advocate amply demonstrating their bonafides in promptly writing to the concerned agencies, and also enclosing details of speed post transmission. The dismissal of the appeal by Commissioner (Appeals) on limitation is not sustainable. In his order, the Commissioner (Appeal) has mentioned that the appeal was filed on 24th July 2013, in respect of the adjudication order dated 27.02.2010 said to be received on 9th July 2013 - it cannot be imputed that the aforesaid appeal filed before the Commissioner (Appeals) was barred by limitation. As the appeal has been filed well within 60 days of the said first receipt of the order in original by the appellants, the same is not hit by the timelines contained in Section 128 of Customs Act - appeal remitted for appropriate decision to the Commissioner (Appeals) with a direction to the Jurisdictional Commissioner to ensure that a copy of the Show Cause Notice is supplied to the noticee/appellants within a month hereof. Appeal allowed by way of remand.

Issues: Appeal dismissed on the ground of limitation, Non-receipt of Order-in-Original, Anomalous situation in the Order-in-Original, Compliance with principles of natural justice

In the judgment by the Appellate Tribunal CESTAT KOLKATA, the appellant's appeal was dismissed by the Learned Commissioner (Appeals) on the ground of limitation. The appellant argued that they were not aware of any adjudication proceedings initiated against them regarding the import of smoked rubber sheets, as they were never served with a Show Cause Notice. They claimed that they only learned of the demand and adjudication order through a communication from the Deputy Commissioner of Customs. The Order-in-Original was allegedly not received by the appellant, and they promptly informed the authorities about the non-receipt, requesting time for the appeal period. The Revenue could not confirm the receipt of the Order-in-Original, and the date discrepancy in the order was pointed out by the appellant's advocate.

Regarding the Order-in-Original, the appellant highlighted an anomaly where the order was signed on a different date than mentioned in the order. The Revenue could not definitively confirm the receipt of the Order-in-Original by the appellant, emphasizing the need for explicit proof of delivery and service in taxing statutes. The Tribunal noted the submissions made by the appellant's advocate and the efforts to communicate the non-receipt of the order to the authorities, including details of speed post transmission. The dismissal of the appeal on limitation grounds was deemed unsustainable, as the appeal was filed within 60 days of the first receipt of the Order-in-Original by the appellants, not breaching the timelines in Section 128 of the Customs Act.

The Tribunal remitted the appeal back to the Commissioner (Appeals) for further consideration, directing the Jurisdictional Commissioner to ensure the supply of a copy of the Show Cause Notice to the noticee/appellants within a month. The Commissioner (Appeals) was instructed to comply with the principles of natural justice, record the appellant's submissions, and allow them to produce supporting evidence. Due to the age of the appeal, the Commissioner (Appeals) was urged to dispose of the matter within six months to ensure timely resolution. The appeal was ultimately disposed of with these directions to address the issues raised by the appellant.

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