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Appeal allowed after revenue fails to prove dispatch date of customs order under Section 128 CESTAT Allahabad allowed appellant's appeal challenging limitation period for filing appeal under Section 128 of Customs Act, 1962. Revenue claimed ...
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Appeal allowed after revenue fails to prove dispatch date of customs order under Section 128
CESTAT Allahabad allowed appellant's appeal challenging limitation period for filing appeal under Section 128 of Customs Act, 1962. Revenue claimed Order-in-Original dated 06.07.2018 was dispatched by speed post same date, but failed to produce dispatch date or acknowledgment records despite appellant's specific denial of receipt. Appellant received order copy only on 05.05.2022 upon request after business closure and address change. CESTAT held revenue failed to discharge initial onus under Section 153, accepting 05.05.2022 as communication date. Matter remanded to Commissioner (Appeals) for decision on merits with personal hearing.
Issues involved: The appeal filed by the appellant was dismissed by the Commissioner (Appeals) as barred by limitation. The main issue was whether the appeal was filed within the prescribed period of limitation specified under Section 128 of the Customs Act, 1962.
Details of the Judgment:
Issue 1: Communication of the Order
The appellant claimed that the Order-in-Original dated 06.07.2018 was communicated to him for the first time on 05.05.2022. On the other hand, the impugned order stated that the said order was dispatched by speed post on 06.07.2018. The Tribunal noted that the burden to demonstrate the dispatch by speed post with acknowledgement due was on the revenue. Since the revenue failed to provide the date of dispatch and the acknowledgement of the speed post, it could not be said that the order was communicated to the appellant around 06.07.2018.
Issue 2: Compliance with Section 153 of the Customs Act
The Tribunal referred to Section 153 of the Act, which specifies modes for service of notice, order, etc. The appellant had contended that the speed post was not delivered to him. Despite this assertion, the revenue did not provide evidence of the date of dispatch or the acknowledgement of the speed post. The Tribunal held that the revenue failed to comply with Section 153 and did not prove that the order was served before 05.05.2022.
Issue 3: Decision and Remand
Considering the lack of evidence regarding the communication of the order and the failure to comply with Section 153, the Tribunal set aside the impugned order and remanded the matter back to the Commissioner (Appeals) for a decision on merits after giving the appellant a personal hearing. The appellant was also instructed to cooperate for the early disposal of the matter.
Conclusion: The appeal was allowed by way of remand to the Commissioner (Appeals) for a decision on merits, highlighting the importance of complying with procedural requirements and ensuring proper communication of orders to the concerned parties.
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