Your appeal time starts from the date department communicated you the order and DEPARTMENT SHOULD PROVE COMMUNICATION.

The case revolves around the timing of an appeal filed by Metro Fashions against a demand notice from the Commissioner of Customs. The appeal was initially rejected as time-barred under section 128 of the Customs Act, 1962. However, Metro Fashions argued that they only received the original order on 13.09.2019, making their appeal within the limitation period. The court agreed, stating that the department failed to provide evidence of earlier communication. The case was remanded for a decision on merits.

This appeal has been filed assailing the impugned order dated 29.11.2019 passed by Commissioner of Customs (Appeals), Mumbai III rejecting the appeal filed by the appellant on the ground of limitation.

2. The issue involved herein is whether the learned Commissioner is justified in dismissing the appeal as time barred U/s. 128, Customs Act, 1962?

3. A demand cum show cause notice dated 31.8.2017 was

issued to the appellant demanding Rs.1,58,101/- being the

drawback amount obtained by the appellant for the exports

made under the shipping bills since according to the department,

the exporter has not realized the foreign exchange involved on

the goods exported under the said Shipping bills as per Rule

16(A) (1) and (2) of Customs, Central Excise and Duties and

Service Tax Drawback Rules, 1995. The same was confirmed by

the adjudicating authority vide Order-in-Original dated

20.3.2018 alongwith penalty of Rs.10,000/- on the exporter. On

24.10.2019, the appellant had filed the appeal before the

learned Commissioner (Appeals) but since it has been filed

beyond prescribed period of 90 days as provided by section 128

ibid therefore the same was rejected on the ground of limitation

without going into the merits of the appeal.

4. I have heard learned counsel for the appellant and learned

Authorised Representative for the Revenue and perused the case

records including the written submissions placed on record by

the respective sides. Learned counsel submits that the appellant

received the copy of order-in-original only on 13.09.2019 that

too when they personally visited the authority’s office and the

appeal was filed by them on 24.10.2019 which is well within the

period of limitation. He further submits that the department

failed to produce any evidence to establish that the Order-in-

Original was served/communicated by them at any earlier point

of time. Section 128 of the Customs Act, 1962 provides for filing

of appeals before Commissioner (Appeals). According to the said

section any person aggrieved by any decision or order may

appeal to the Commissioner (Appeals) within 60 days from the

date of the communication to him of such decision or

order.[emphasis supplied] This section bars the Commissioner

(Appeals) from condoning the delay beyond the period of 30

days. So what is relevant is the date of communication of the

order of the adjudicating authority. I have to see when the

adjudicating order was communicated to the appellant.

According to the learned counsel although the date of the

adjudicating order is 28.3.2018 but the same was not received

by the appellant and the certified copy of the same was received

by them on 13.9.2019 that too when they approached the

authorities concerned and therefore the period of limitation has

to be calculated from 13.9.2019 and not from 28.3.2018. Per

contra learned Authorised Representative submits that the

adjudication order was sent to the appellant by speed post and

deemed to have been served on them.

5. Section 128 ibid which has been relied upon by the learned

Commissioner (A) for dismissing the appeals on the ground of

limitation, uses the words date of communication of order, which

in my view is 13.9.2019 as the department failed to produce on

record any evidence including the tracking record in support of

their submission that the adjudication order was sent to the

appellant immediately after the passing of the Order-in-Original.

Merely by sending a copy of the Order-in-Original by speed post,

the department cannot be said to have discharged their liability

as they have to communicate the same to the appellant which

means it has to be served on the assessee as the wording used

in Section 128 ibid is ‘date of communication of order’. In R.

Sundararaj v. CC, Tuticorin - 2018 (363) E.L.T. 426 (Tri. -

Chennai) and OSA Shipping Pvt. Ltd. v. CCE, Chennai - 2015

(325) E.L.T. 486 (Mad.) it has been held that merely by sending

the Order-in-Original/show cause notice by registered post would

not amount to communication/service of the Order-in-Original.

In the instant case the appellant received copy of the Order-in-

Original on 13.9.2019 the appeal before the learned

Commissioner (A) was filed on 24.10.2019 which is well within a

period of three months from the date of receipt/communication

of the Order-in-Original. Therefore, the Commissioner (Appeals)

has erred in rejecting the appeal on the ground of time bar.

6. Accordingly the impugned order is set aside and the

matter is remanded back to the Commissioner (Appeals) to

decide the same on merits after following the principle of natural

justice within a period of three months from the date of receipt

of this order. The appeal is allowed by way of remand.

(Pronounced in open Court on 06.06.2023)

(Ajay Sharma)

Member (Judicial)