Whether delay of one day condonable on account of receiving the order late?

PJ/Case Laws/2012-13/1468

Case:-SHRI MOHAMMED FOUZAN ALI MURTUZA V/S COMMISSIONER OF CUSTOMS, HYDERABAD

Citation:- 2013-TIOL-269-CESTAT-BANG

Brief Facts: - The appellant filed this appeal seeking waiver of pre-deposit and stay of recovery in respect of the adjudged dues. In adjudication of a show-cause notice, the Additional Commissioner of Customs passed Order-In-Original No.62/2011-Cus dated 19.8.2011 imposing a penalty of Rs.3 lakhs on the appellant under Section 112(a) of the Customs Act besides confiscation of certain goods, imposition of fine, etc. Aggrieved by the said order, the appellant preferred an appeal to the Commissioner (Appeals) on 20.10.2011. They also filed an application for waiver of pre-deposit. The appellate authority prima facie found delay in the filing of the appeal and, therefore, called upon the appellant to apply for condonation of the delay. Apparently the appellant did not respond to such notices of the Commissioner (Appeals). Eventually, the Commissioner (Appeals) dismissed the appeal as time-barred, after holding that the order-in-original had been received by the appellant on 19.8.2011 and hence the appeal filed on 20.10.2011 was delayed by one day.

Appellant’s Contention: - The Appellant contended thatthe order-in-original was received by post after 15 days from the date of its dispatch and hence there was no delay in the filing of the appeal on 20.10.2011. However he is unable to specify the date of dispatch.
Respondent’s Contention: - The respondent argued that there is no evidence of the order-in-original having been received by the appellant only after 15 days from the date of dispatch. Thus the appellant’s plea should not be accepted.

Reasoning of Judgment: - The Hon’ble CESTAT held that Section 153 of the Customs Act provides for service of orders, decisions, notices etc.
(a) by tendering or sending by registered post to the person for whom it is intended or to his agent or
(b) if service in such manner is not possible, by affixing on the notice board of the Customs House. In the instant case, it is not the claim of either side that a copy of the order-in-original was tendered to the appellant or his agent, nor that any copy was affixed on the notice board of the Customs House. Both sides seem to be contending that the order was sent by post from the office of the Additional Commissioner and received by the appellant by post. In the circumstances, this Tribunal has to presume that Section 153(a) of the Customs Act was followed by the Additional Commissioner. If it be assumed that the order-in-original was dispatched on 19.8.2011 from the Additional Commissioner's office in Hyderabad, the postal article must have been received by the addressee located in Bhatkal, Karnataka on some date after 19.8.2011, in which event the question of delay of the appeal filed on 20.10.2011 does not arise. In the view of this matter, they set aside the impugned order and allow this appeal by way of remand with a request to the Commissioner (Appeals) to deal with the assessee's appeal and the connected stay application in accordance with law and the principles of natural justice.

Decision: - The appeal was allowed by way of remand.

Comment:-The essence of this case is that in view of the principles of natural justice, appeal cannot be simply rejected on account of it being filed late by one day when it could be proved that the order was received late by the assessee.

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PJ/Case Laws/2012-13/1468

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