2013 (11) TMI 90

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....ms appeal No.247/2010, which was filed against order-in-appeal dated 20.10.2009 passed by the Commissioner of Customs (Appeals) dismissing as time-barred the party's appeal filed against an order of adjudication dated 10.2.2004. The lower appellate authority had found that a copy of the order-in-original had been dispatched to the party on 12.2.2004 but the appeal against that order was filed as late as 30.3.2009. The appellate authority had no power to condone the heavy delay found by it and therefore the party's appeal against the order-in-original came to be dismissed as time-barred. When their appeal against the order-in-appeal came up for consideration by this bench, the question arose as to whether the appellant had received a copy of....

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....esent proceedings. In this context, the learned counsel refers to an affidavit of the Managing Director of the company and one of Shri M.B. Salim. Reiterating the relevant averments contained in the Managing Directors affidavit, the learned counsel submits that it was during the course of BIFR proceedings related to the company that the factum of the order-in-original having been passed against them was gathered on 13.1.2009. It is submitted that subsequently, on 19.1.2009, the appellant collected the order-in-original from the office of the Commissioner of Customs. According to the learned counsel, this bundle of circumstances needs to be examined in the present proceedings and the finding that the order-in-original was served on the appe....

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....card accompanying the dispatch had been returned to the department with the signature of the recipient and the seal of the company affixed thereon. The acknowledgment of receipt was dated 17.2.2004. Considering this fact, the learned Commissioner (Appeals) concluded that the appeal of the assessee was delayed by nearly 5 years and that such delay was far beyond the condonable period of delay prescribed under Section 128 of the Customs Act. On our part also, the relevant original records of the department were scrutinized and the date of receipt of the order-in-original by the company was confirmed to be 17.2.2004. Further, at the final hearing stage, the learned counsel for the appellant was confronted with the said records and he fairly ac....