M/s. Shree Vaibhavalakshmi Overseas vs Commissioner Of Customs

The short issue in this appeal is whether the Commissioner (Appeals-II) was correct in rejecting the first appeal as time-barred.

2.1 Shri M.A. Mudimannan, Learned Advocate appearing for the assessee-appellant, would submit, by referring to the Order-in-Original, that the same was passed on 21.05.2018, generated on 11.09.2018 and dispatched on 24.09.2018; that the assessee has its address at Bengaluru and therefore, it was not possible for the Revenue to have served the Order-in-Original on 24.09.2018 itself.

2.2 He would also submit that the appellant received the Order-in-Original on 27.09.2018 and hence, the first appeal which was filed on 26.11.2018, was well within the prescribed period.

3.1 Per contra, Shri M. Jagan Babu, Learned Authorized Representative appearing for the Revenue, supported the findings of the Commissioner (Appeals) and also relied on the judgement of the Hon'ble High Court of Madras in the case of M/s. Jai Enterprises v. Commissioner of Customs (Appeals) reported in 2006 (206) E.L.T. 41 (Mad.).

3.2 He would also submit that since there was no application for condonation of delay, the Commissioner (Appeals) has correctly dismissed the appeal as timebarred.

I have considered the rival contentions.

5.1 The Revenue has not placed on record the acknowledgement due after having served/communicated the Order-in-Original to the appellant and hence, I am of the prima facie view that the date of communication, as claimed by the appellant, has to be accepted. The Hon'ble Madras High Court in the case of M/s. Jai Enterprises (supra) has observed inter alia the findings of the Division Bench, as under :

"12. Now we have to consider the applicability of the decision reported in 2000 (126) E.L.T. 65 (Mad) = A.I.R. 1974 Mad. 224. In that case,

... . . . .

".....The normal presumption, unless the contrary is proved, is that the service shall be deemed to have been properly effected when a letter is properly addressed, pre-paid and posted by registered post. That the notice was sent to proper address, pre-paid and posted by registered post is not under dispute. No other attempt has been made to prove the contrary. The endorsement 'left' is not sufficient to prove the contrary....."

5.2 In the above case, apparently the notice was sent to the proper address while the Postal Authorities made an endorsement "left" and in the case of M/s. Jai Enterprises (supra), the endorsement given by the Postal Authorities was "absent" and "intimation delivered", for which reason it was observed that the petitioner therein was avoiding service. Any order normally would be sent by Registered Post with Acknowledgement Due (RPAD), which would have been the case here also followed by the Adjudicating Authority. So, when the Order-in-Original was dispatched by RPAD in terms of Section 153 of the Customs Act, 1962, the acknowledgement must have come back, which is not placed on record. In any case, the service of the same on the very same day can also not be accepted since the location of the assessee is in a different State.

For the above reasons, I am of the considered opinion that there was no delay in filing the first appeal and therefore, the Commissioner (Appeals) was in error in rejecting the appeal as time-barred. When there was no delay, there is no requirement in law for filing any application for condoning the delay.

In the result, the impugned order is set aside and the matter is remanded to the file of the Commissioner (Appeals) to hear the appellant and pass an order on merits in accordance with law, after complying with the principles of audi alteram partem.

The appeal is disposed of on the above terms.

(Operative part of the order was pronounced in open court)