2007 (8) TMI 705 - AT - Customs

Tribunal Overturns Order Denying Appeal Filing Delay, Finds Service Failure

ITC LIMITED Versus COMMISSIONER OF CUSTOMS (PORT), KOLKATA

The Tribunal set aside the Order rejecting the application for condonation of delay in filing the appeal, noting the appellants' need for time to process ... - Issues:1. Timeliness of filing the appeal.2. Service of Order-in-Original.3. Condonation of delay.4. Interest on refund claim.Analysis:Timeliness of filing the appeal:The lower Appellate Authority rejected the appeal on the grounds of not being filed within the prescribed time-limit of the Order-in-Original dated 2-9-02. However, it was argued that even if the Order-in-Original was received by the appellants on 16-10-03, the delay of five days in filing the appeal was not unreasonable. The Tribunal noted that the appellants, being a large company, needed time to process the appeal papers and obtain legal opinion. The Tribunal observed that similar delays by the Department were liberally condoned, and it would be unfair not to extend similar consideration to the appellants. Consequently, the Order rejecting the application for condonation of delay was set aside.Service of Order-in-Original:The Department claimed that the Order-in-Original was sent by speed post, meeting the requirement of service under Section 153 of the Customs Act, 1962. However, the Tribunal found that Section 153 mandates service by registered post, and no amendment had been made to include service by speed post. The Department failed to provide evidence that the Order dated 2-9-02 was sent by speed post, as there was no acknowledgment or report from postal authorities. Without proof of service in 2002 as required by Section 153, the Department could not establish proper service.Condonation of delay:The appellants explained the delay in filing the appeal, citing the need for processing the appeal papers and obtaining legal opinion. The Tribunal found the delay of five days within the condonable limit of thirty days to be justifiable, especially considering the size of the company. The lower Appellate Authority's rejection of the application for condonation of delay was deemed unjustified, and the Order was set aside.Interest on refund claim:The Department argued that there was no delay in sanctioning the refund claim as the necessary documents were submitted after filing the claim. It was contended that no interest was payable to the appellants. The Tribunal directed the lower Appellate Authority to consider these aspects, along with the affidavit and counter-affidavit filed by both sides, when deciding the case on merit upon remand.In conclusion, the impugned Order was set aside, and the appeal was allowed to be remanded to the lower Appellate Authority for a decision on merit, with both parties granted adequate hearing opportunities.