Case Law Details
Ashapura Minechem Ltd. Vs C.C.-Jamnagar(Prev) (CESTAT Ahmedabad)
The Hon’ble CESTAT, Ahmedabad allows appeals and set aside rejection orders. Holds: (i) the appeals are not time barred; (ii) In terms of section 129, it is “communication” of the order and not “issuance” or “dispatch” of order which is relevant; (iii) Follows Hon’ble Delhi High Court and Hon’ble Madras High Court judgments and allows appeals.
The appellant is an exporter. It claimed refund. Refund was rejected. The said orders were not communicated to the appellant. Appeals filed before Commissioner (Appeals) were rejected on that ground of time bar. Hence, appeals before CESTAT.
The Hon’ble CESTAT, Ahmedabad allows appeals and set aside rejection orders. Holds: (i) the appeals are not time barred; (ii) In terms of section 129, it is “communication” of the order and not “issuance” or “dispatch” of order which is relevant; (iii) Follows Hon’ble Delhi High Court and Hon’ble Madras High Court judgments and allows appeals.
The matter was argued by Ld. Counsel Bharat Raichandani
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
These appeals are directed against the Order-In-Appeal whereby the Learned Commissioner (Appeal) rejected the appeals on the ground of time bar.
2. Shri Bharat Rai Chandani learned Counsel along with Shri Rithik Jain Advocate appearing on behalf of the appellant at the outset submits that the Learned Commissioner after obtaining a report from the Adjudicating Authority, i.e. the Assistant Commissioner, on his own decided that the appeal was filed belatedly i.e. after 90 days. Hence, the appeal was dismissed on the ground of the time bar.
2.1 It is his submission that firstly the report was not shown to the appellant. Secondly, as per the report there is a confirmation of dispatch of the order but there is a no proof of acknowledgement of the order. Accordingly, on the basis of Assistant Commissioner’s report, the learned commissioner (Appeal) has wrongly rejected the appeal as time barred.
2.2 He further submits that on request of the appellant the order copy was provided only on 13.01.2020 and the appeals before the Commissioner (Appeal) were filed on 28.02.2020 i.e. within normal period of 60 days. He placed reliance on the following judgments:
- M/s. Sun Aviation Pvt. Ltd. Vs. Commissioner of Customs– 2023 TIOL-206-HC-DEL-CUS
- Sakthi International Vs. Acct. Commissioner 2020 (374) ELT 499 (Mad.)
- Farooq Shabbir Noorani Vs. Commissioner- 2018 (359) ELT 650 (Mad.)
- Margra Industries Ltd. Vs. Commissioner- 2006 (202) ELT 244 (Tri.-LB)
- Neha Cosmetics Vs. Commissioner- 2007 (208) ELT 494 (Del.)
3. Shri AR Kanani learned superintendent (AR) appearing on behalf of the revenue reiterates the finding of the impugned order.
4. On careful consideration of the submission made by both the sides and perusal of record, we find that fact is not under dispute, in as much as there is only proof of dispatch of the order by the department to the appellant but there is no proof of acknowledgement of the order. As per the appeals provision, the time limit prescribed from the communication of the order and not from the dispatch of the order. Since in the present case there is no proof of communication of the order, the date, on which the department provided the copy of the orders-in-original to the appellant, shall be considered as date of communication. Accordingly, the appeals before the Commissioner (Appeal) were not time bar. The judgement relied upon by the learned counsel, support their case.
5. Accordingly, we set aside the impugned order and remand the matters to the Commissioner (Appeal), for passing a fresh order on merit without going into the issue of limitation.
(Pronounced in the open court on 11.12.2023)
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