Case Law Details
A.S. Enterprise Vs Commissioner of Customs (Port) (CESTAT Kolkata)
Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) Kolkata addressed an appeal by A.S. Enterprise concerning a delay in filing against the Commissioner of Customs (Appeals). The case revolved around the timeline for filing an appeal under Section 128 of the Customs Act, 1962, which permits 60 days from the communication of an Order-in-Original, with a condonable delay of up to 30 additional days. A.S. Enterprise filed their appeal after 70 days, claiming receipt of the Order-in-Original on August 10, 2018, while the customs authority claimed service occurred on July 31, 2018. However, neither party could provide conclusive evidence to support their claims.
Given this ambiguity, CESTAT decided to condone the delay, finding that A.S. Enterprise had reasonably explained their filing timeline. The tribunal set aside the earlier rejection of the appeal by the Commissioner (Appeals) and remanded the matter for a merit-based review. CESTAT directed the Commissioner (Appeals) to resolve the case within three months while adhering to principles of natural justice. This decision underscores the importance of clarity in service records and the necessity for both sides to substantiate claims regarding procedural timelines in customs disputes.
FULL TEXT OF THE CESTAT KOLKATA ORDER
The instant appeal has been filed against the Order-in-Appeal No. KOL/CUS(PORT)/AA/302/2019 dated 02.05.2019 passed by the Commissioner of Customs (Appeals), 3rd Floor, Custom House, 15/1, Strand Road, Kolkata.
2. When the matter was posted for hearing on 12.12.2024, none have appeared on behalf of the appellant. However, on perusal of the appeal papers, we find that the issue is in a narrow compass, which can be decided on the basis of the documents available on record. Accordingly, the appeal is taken up for disposal with the assistance of the Ld. Authorized Representative of the Revenue.
3. We observe that the Ld. Commissioner (Appeals), in the impugned order, has not decided the issue on merits. He has rejected the appeal filed by the appellant on the ground that the appeal was filed after expiry of sixty days from the date of communication of the Order-in-Original.
3.1 We find that Section 128 of the Customs Act, 1962 provides a time-period of 60 days to file the appeal from the date of communication of the Order- in-Original, before the Commissioner (Appeals). The Commissioner (Appeals) has power to condone a delay of maximum 30 days, provided sufficient reason is shown for the delay in filing the appeal. Thus, we observe that the appellant can file the appeal before the Commissioner (appeals) up to a maximum time- period of 90 days, including the maximum condonable period of 30 days.
3.2 In the present case we observe that the appellant has filed appeal on 09.10.2018 against the Order- in-Original No. KOL/CUS/ADC/ADJN (PORT)/159/2018 dt. 30.07.2018, issued to the appellant on 31.07.2018, i.e., the appeal has been filed after expiry of seventy days from the date of communication of the impugned Order-in-Original. However, we find that the appellant has claimed that they have received the impugned Order-in-Original only on 10.08.2018, and has contended that the appeal has been filed within the prescribed time-limit of sixty days. We find that the Ld. Commissioner (Appeals) has observed in the impugned order that the appellant could not produce any documentary evidence in support of their claim for receipt of the said Order-in-Original on 10.08.2018. We observe that the Department also could not produce the evidence of serving the said Order-in-Original to the appellant on 31.07.2018. Thus, we hold that the appellant has satisfactorily explained the reason for the delay in filing the appeal before the Commissioner (Appeals) and hence, we condone the delay in filing the appeal before Commissioner (Appeals).
3.3 Accordingly, we set aside the impugned order passed by the Commissioner (Appeals) and remand the matter back to Commissioner (Appeals) to decide the issue on merits, after following the principles of natural justice. The Commissioner (Appeals) is directed to decide the issue within a period of three months from the date of receipt of this order.
4. The appeal filed by the appellant is disposed by way of remand.
(Operative part of the order was pronounced in open court)
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