Whether appeal filed due to late receipt of OIO be dismissed on the grounds of limitation?

PJ/Case Law/2014-15/2159

Case:- M/s SHILPI CRAFTS Vs COMMISSIONER OF CUSTOMS, KANDLA

Citation:- 2014-TIOL-647-CESTAT-AHM

Brief facts:- As per information obtained under RTI Act, 2005, Order-in-Original dated 31.08.2012 sent by courier on 29.12.2012. Appellant filed appeal before Commissioner (A) on 12.02.2013. Commissioner (A) thus dismissed appeal on ground of limitation. The issue before the Tribunal is whether this is a correct approach for disposing an appeal.

Appellant’s contentions:- Learned counsel appearing for the appellant submitted that appellant had received order-in- original in December 2012 and accordingly filed the appeal on 12.02.2013. It was his submission that the appellant was granted personal hearing and he argued the matter on merits. He then drew the attention to the impugned order and submitted that the first appellate authority had dismissed the appeal on the ground of limitation i.e. appeal had been filed after 5 months from the date of issue of order. He submitted that, though the office of the Additional Commissioner, Customs indicated the date of issue of order as 31.08.2012, but on query under RTI, it was informed to them that the order was dispatched through professional courier on 29.12.2012. He drew the attention to the reply given by the office of the Customs House, Mundra Port & Special Economic Zone, Mundra File No. VIII/RTI-01/MP&SEZ/2013-14/3467 dated 11.10.2013. It was also his submission that the first appellate authority had not considered the appeal on merits and since the matter had been disposed of only on preliminary grounds, the impugned order be set-aside. He also submitted that during the relevant period the proprietor of the appellant was travelling abroad and in support of such claim, he then drew the attention to the photocopies of the Passport which were annexed to the appeal memoranda. He also drew attention to the check-list prepared by the office of the Commissioner of Customs as regards receipt of the appeal in their office. In the said checklist, at column No.7, the Commissioner (Appeals) had specifically stated that the appeal had been filed in time.

Respondent’s contentions:- On 20.02.2014, when this matter came up for disposal, the learned departmental representative was directed to produce evidences of serving order-in-original on the appellant. In response to such direction, Customs House, Mundra Port and Special Economic Zone, Mundra , vide letter dated 2.03.2014 had enclosed copy of the courier receipt i.e. M/s. Professional Couriers, which had been brought on record by the learned Counsel.

Reasoning of judgment:- On perusal of the records, the Tribunal found that the office of the Joint Commissioner, Customs vide his letter dated 11.10.2013 (referred to herein above), in response to an RTI query, at clause No. (v), had specifically stated that there was no acknowledgment receipt of the courier, signed by the assessee, which was available on record. They also found strong force in the contentions raised by the learned Counsel that the order which was purportedly sent by courier on 29.10.2012 could not reach at destination (Ludhiana) on 30.10.2012, as was evident from the e-mail which was produced by the learned counsel that day, received from the Professional Courier. This e-mail also indicate that, normally such kind of packets takes 3 to 4 days for delivering to consignee in Ludhiana, if were sent from Mundra . Be that as it may, they also found that the first appellate authority had not put to notice the appellant that there was delay in filing the appeal and when the appellant appeared for the final hearing, he disposed the appeal only on limitation. In our considered view, this was not a correct approach for disposing an appeal. Suffice to say that first appellate authority should have disposed the appeal on merits and if he felt so strongly that appeal had been filed belatedly, he should had given an opportunity to the appellant to explain the delay. The Tribunal found after perusal of the records which were produced before them, that there was no delay in filing the appeal before the first appellate authority.
The Tribunal were unable to go into merits of the case as the first appellate authority had not recorded any finding on the merits of the case, they set-aside the impugned order with direction to the first appellate authority to restore the appeal to its original number and dispose the same on merits, after following the principles of natural justice.

Decision:- Appeal allowed by way of remand.

Comment:- The analogy drawn from the case is that if belated appeal is filed due to late receipt of OIO then the first appellate authority should dispose the appeal on merits and if it feels so strongly that appeal has been filed belatedly, he should give an opportunity to the appellant to explain the delay. Thus, it was held that no appeal can be dismissed merely on the grounds of limitation without appreciating the facts and circumstances of the case.

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PJ/Case Law/2014-15/2159

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