Tribunal allows appeal under Section 129A Customs Act, remands for further consideration.

The Tribunal allowed the appeal, finding it was filed within the condonable period despite the Commissioner's rejection as time-barred. It was determined that the appeal fell under Section 129A of the Customs Act, 1962, as it involved issues beyond the time-bar aspect. Additionally, the Tribunal concluded that the Order in Original was not validly served on the appellant, setting aside the rejection based on the limitation period. The matter was remanded to the Commissioner (Appeals) for further consideration of the delay application and a decision on the case's merits.

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Issues: Appeal filed beyond the period of limitation; Whether the appeal lies before the Tribunal due to restrictions under Section 129A of the Customs Act, 1962; Service of Order in Original on the appellant.

Issue 1: Appeal filed beyond the period of limitation
The appellant filed an appeal against the order for confiscation of goods and imposition of penalty, which was rejected by the Commissioner (Appeals) as time-barred. The appellant received the Order in Original on 16.12.2019, but the Commissioner computed the limitation from 20.11.2019 based on an acknowledgment card signed by an unknown person. The appellant argued that the appeal was filed within 85 days from the date of receipt by the consultant. The department contended that the appeal was filed after 113 days from the date of communication of the order, exceeding the maximum condonable period of 90 days. The Tribunal found that the appeal was filed within the condonable period and remanded the matter to the Commissioner (Appeals) for hearing on merits.

Issue 2: Appeal lies before the Tribunal under Section 129A of the Customs Act, 1962
The Tribunal raised a doubt whether the appeal would lie before the Tribunal under Section 129A due to restrictions provided in the first proviso. The proviso states that no appeal shall lie in respect of any order passed by Commissioner (Appeals) if it relates to goods imported or exported as baggage. In this case, besides confiscation of goods, there was an issue of smuggling gold, and the Commissioner's order focused on the time-bar aspect rather than the case's merits. Thus, the appeal fell under sub-clause (b) of clause (1) of Section 129A.

Issue 3: Service of Order in Original on the appellant
The department claimed that the Order in Original was sent on 18.11.2019 and received by the appellant on 20.11.2019 based on an acknowledgment card signed by S. Mujahian. However, the appellant denied receiving the order and affirmed this through an affidavit. The burden shifted to the department to establish why the letter was served to S. Mujahian. As the department failed to prove the relationship between S. Mujahian and the appellant, it was concluded that the order was served on someone other than the appellant. The appellant filed the appeal within the condonable period from the date of receipt by the consultant, and the rejection on the ground of time-bar was set aside.

In conclusion, the Tribunal set aside the rejection of the appeal on the ground of being time-barred, remanding the matter to the Commissioner (Appeals) for consideration of the delay application and a decision on the merits of the case.

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