Tribunal rules in favor of appellant, finding Commissioner's error in dismissing appeal on limitation grounds.

The Tribunal found in favor of the appellant, ruling that the Commissioner erred in dismissing the appeal on grounds of limitation. The Tribunal determined that the date of communication of the adjudicating order was 13.9.2019 when the appellant received the order, not the date of the original order. As a result, the appeal was allowed, and the matter was remanded to the Commissioner for a decision on the merits within three months from the Tribunal's order.

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Issues involved:
The appeal assails the order of Commissioner of Customs (Appeals) dismissing the appeal as time-barred under section 128 of the Customs Act, 1962.

Issue 1: Appeal dismissal on grounds of limitation
The issue is whether the Commissioner was justified in dismissing the appeal as time-barred under section 128 of the Customs Act, 1962.

The demand cum show cause notice was issued to the appellant on 31.8.2017 for a drawback amount of Rs.1,58,101/- due to alleged non-realization of foreign exchange on exported goods. The adjudicating authority confirmed the demand and imposed a penalty on 20.3.2018. The appellant filed the appeal on 24.10.2019, beyond the prescribed 90-day period, leading to its rejection by the Commissioner on grounds of limitation without delving into the merits of the case.

Issue 2: Date of communication of order
The crux of the issue lies in determining the date of communication of the adjudicating order to calculate the period of limitation for filing the appeal.

The appellant contended that they received the copy of the order-in-original on 13.9.2019 when they visited the authority's office, and subsequently filed the appeal on 24.10.2019, well within the limitation period. The department failed to provide evidence of timely communication of the order, while the appellant argued that the period of limitation should commence from the date they received the certified copy of the order on 13.9.2019, not from the date of the adjudicating order on 28.3.2018.

Decision:
The Tribunal found that the Commissioner erred in dismissing the appeal on grounds of limitation. The department's failure to produce evidence of timely communication of the order led to the conclusion that the date of communication was 13.9.2019 when the appellant received the order. Relying on precedents, the Tribunal emphasized that mere dispatch of the order by speed post does not constitute communication, which necessitates actual service on the assessee. Consequently, the impugned order was set aside, and the matter remanded to the Commissioner for a decision on merits within three months from the date of the Tribunal's order. The appeal was allowed by way of remand.

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