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Judgment
Brief facts are that the appellant received a notice of recovery of dues of Rs.90,000/- towards demand confirmed by Order in Original passed against the appellant. On receiving such intimation dated 12.2.2020, the appellant filed a letter dated 17.2.2020 informing the respondent that though a Show Cause Notice No. 1/17 dated 20.2.2018 was served upon them and personal hearing was conducted, they did not receive any further communication of passing of the Order in Original. Later, the appellant also requested to issue a copy of the Order in Original. They received a copy of the Order in Original from the Revenue Recovery Unit in February 2020 and came to know that an amount of Rs.90,000/- has been confirmed as fine and penalty against them. They immediately filed an appeal before Commissioner (Appeals) on 11.5.2020 challenging the Order in Original dated 15.10.2018. Vide the order impugned herein, the Commissioner (Appeals) dismissed the appeal holding that the appeal is time-barred. Aggrieved by such order, the appellant is now before the Tribunal.
The ld. Counsel Ms. V. Pramila appeared and argued for the appellant. She submitted that the appellant received a Show Cause Notice in 2018 and also attended the personal hearing through their authorized representative. After hearing, there was no communication in regard to the adjudication proceedings. Only when the appellant received the intimation from Revenue Recovery Unit, they came to know that such order has been passed. They received a copy of the Order in Original only in February 2020 after requesting to furnish a copy of the Order in Original. The appeal was filed on 11.5.2020 within a period of three months computed from the date of receipt of the Order in Original. The Commissioner (Appeals) has erred in rejecting the appeal on the ground of being time-bar. In para 6 of the impugned order, the Commissioner (Appeals) has stated that the Order in Original No. 558/2018 dated 15.10.2018 was dispatched on 7.4.2019 and therefore the contention of the appellant is not tenable. She adverted to section 128 and 153 of the Customs Act to argue that mere sending by speed post would not suffice the communication of the Order in Original. She also took support from the decisions in R. Sundaraj Vs. CC, Tuticorin - 2018 (363) ELT 426 (Tri. Chennai); Saral Wire Craft Pvt. Ltd. Vs. CCE - 2015 (322) ELT 192 (SC) and OSA Shipping Pvt. Ltd. Vs. CCE, Chennai - 2015 (325) ELT 486 (Mad.) to argue that merely by sending the Order in Original / Show Cause Notice by registered post would not amount to communication / service of the Order in Original. She prayed that the appellant may be given a chance to contest the case on merits.
The ld. AR Shri L. Nandakumar supported the findings in the impugned order. He referred to para 6 of the impugned order and submitted that the image of the speed post receipt has been included by the Commissioner (Appeals) in this paragraph which would sufficiently prove that the Order in Original has been served upon the appellant. The appeal field after more than two years delay has been correctly dismissed as time-barred.
Heard both sides.
The issue is whether the appeal filed by the appellant is timebarred or not. The ld. Counsel has explained that the appellant has not been served with the Order in Original and has received the copy only after making a request. The letter issued in February 2020 by the Revenue Recovery Unit shows that the Order in Original was served upon the appellant only in February 2020. The contention of the department that since the Order in Original is issued by speed post, the appellant has been served with the Order in Original cannot be accepted unless there is sufficient proof to establish that the same has been served and communicated to the respondent / appellant. The word used in section 128 as well as 153 is communication of the decision, summons and notices. By merely sending a copy of the Order in Original by speed post, the department cannot wash of their hands when they are duty bound to serve the same on the appellant. The department ought to have tracked the consignment and made sure that it has been delivered to the addressee. They can obtain a copy of the same from the website after tracking the consignment and keep the same in the file so that it would be useful to prove that the Order in Original is served upon the addressee. The decision cited by the ld. Counsel also supports the case of the appellant.
From the discussions made above, I find that the dismissal of the appeal on the ground of time-bar is unjustified. The same is set aside. The matter is remanded to the Commissioner (Appeals) who is directed to consider the appeal on merits. The appeal is allowed.
(Dictated in open court)