2023 (5) TMI 776 - AT - Customs

Appeal allowed due to timely filing despite initial rejection. Order-in-Appeal set aside for further consideration.

The appeal was allowed as the court found that the appeal was filed within the limitation period despite the initial rejection based on being time-barred. ... Service of order - limitation for filing appeal - date of receipt for computation of limitation - remand for decision on meritsService of order - date of receipt for computation of limitation - limitation for filing appeal - Date on which the Order in Original was served on the appellant for the purpose of computing limitation and whether the appeal before the Commissioner (Appeals) was time barred. - HELD THAT: - Record shows the Order in Original was addressed to two addresses; Revenue's own letter dated 04.08.2017 recorded that communications to the Hinjewadi address were returned and thereafter correspondence was directed to the Ranjangaon MIDC address. A private individual, Shri Sumit Tawari, obtained a copy of the Order in Original on 29.07.2019 and was given a copy on 05.08.2019, but that copy was not served on the appellant. The appellant requested an attested copy on 19.09.2019 and was provided an attested copy on 27.09.2019. Because the appellant did not receive the Order in Original until 27.09.2019, that date governs service for computing the limitation period. Applying that date, the appeal filed on 18.11.2019 before the Commissioner (Appeals) fell within the prescribed limitation. [Paras 4]The date of service for limitation purposes is 27.09.2019 and the appeal before the Commissioner (Appeals) was within limitation.Remand for decision on merits - Whether the matter should be remanded to the Commissioner (Appeals) for adjudication on merits. - HELD THAT: - Having found that the appeal was not time barred, the Tribunal set aside the Order in Appeal which had rejected the appeal as barred by limitation and directed that the Commissioner (Appeals) decide the appeal on its merits. The remand is for fresh consideration of the substantive appeal, not for re adjudication of the limitation point already decided by the Tribunal. [Paras 5]Impugned Order in Appeal is set aside and the matter is remanded to the Commissioner (Appeals) for decision on merits.Final Conclusion: Appeal allowed by way of remand: the Tribunal held that service of the Order in Original on the appellant occurred on 27.09.2019 making the appeal before the Commissioner (Appeals) timely, set aside the impugned order rejecting the appeal as time barred and remitted the case to the Commissioner (Appeals) for adjudication on merits. Issues: Appeal dismissed as time-barred; Date of service of Order-in-Original; Appeal filed within limitation period.In the present case, the appeal was directed against an Order-in-Appeal that had been rejected as time-barred by the Learned Commissioner (Appeals). The proceedings involved a show cause notice dated 13.12.2016, where the appellant had two addresses - one in Hinjewadi, Pune, and another in Ranjangaon MIDC, Taluka Shirur, District Ahmednagar. Despite a letter sent to the Hinjewadi address being returned, the Order-in-Original issued on 12.02.2018 was addressed to that same address. However, a copy of the Order-in-Original was obtained by Shri. Sumit Tawari through an RTI application on 29.07.2019, and the appellant received an attested copy on 27.09.2019, following a request made on 19.09.2019 to enable them to file an appeal.The Commissioner (Appeals) had determined that the appellant received the copy of the Order-in-Original on 05.08.2019, deeming the appeal time-barred. However, it was clarified that the copy was actually given to Shri Sumit Tawari on that date, not directly to the appellant. Consequently, the date of service of the Order-in-Original on the appellant was considered to be 27.09.2019. As a result, the appeal filed before the Commissioner (Appeals) was found to be within the limitation period prescribed by law.Based on the above finding, the impugned Order-in-Appeal was set aside, and the matter was remanded to the Commissioner (Appeals) for a decision on the merits of the case. Ultimately, the appeal was allowed by way of remand, ensuring that the appellant's right to present their case was preserved, and the issue of timeliness was appropriately addressed.