Failure by Dept to Dispatch Order to Assessee, No Bar of Limitation u/128 of Customs Action: CESTAT Remands Matter for Adjudication [Read Order]

The Allahabad Bench of the Customs, Excise and Service Tax Appellate Tribunal(CESTAT) remanded the matter to consider as there was no bar of limitation arising under section 128 of the Customs Act, 1962. The bench observed that the revenue department failed to dispatch the order to the assessee to the correct address. Shri Raj Kumar Swarnkar, the appellant was earlier running a jewellery shop in the name and style of M/s. Kamakhya Bullion Center. On account of some business transaction, his employee Shri Suresh Kumar was returning by train from Kolkata carrying two gold bars and when the train reached Mughalsarai Junction on 24.04.2017, his employee was apprehended by the G.R.P Personal, who handed over the recovered gold to the team of Customs Preventive, Varanasi. After issuing a show cause notice, the Order-in-Original was passed, subjecting the seized gold to absolute confiscation and imposing a penalty of Rs.4 lakhs on the appellant. Appeal against the said Order has been rejected by the impugned Order-inAppeal as barred by limitation, without entering into the merits of the case. Shri Kartikeya Narain, Counsel appeared for the appellant and Shri Sarweshwar T. Khairnar Authorised Representative appeared for the revenue. It was submitted that the appellant was a small-time jeweller and after the seizure of the two gold bars, the appellant closed down its business activities, for want of working capital and entire finances invested in the two gold bars, which were seized by the revenue. After the closure of the shop, the appellant shifted to other residential premises. It was submitted that since the complaint case was also instituted by the revenue before the court of Special CJM, Varanasi, hence under the legal advice given by its counsel engaged for contesting criminal complaint, the appellant was under a bonafide impression that only one proceeding can be imitated by the revenue. During the period when the appellant contested criminal proceedings, he was not aware of the Orderin-Original and the said order was also not served on him in the manner known to the law, as by that time he had shifted to a new address. The Per contra, the Authorised Representative for the revenue submitted that the order was served by the provisions contained under section 153 of the Customs Act and therefore the appeal was rightly dismissed by the commissioner (appeals) on the ground of limitation. The question before the Tribunal was that whether the appeal filed by the appellant was filed within the prescribed period of limitation specified under Section 128 of the Customs Act, 1962 or not. The period of limitation provided under the said Section 128 is ‘sixty days from the date of communication of decision or order’. On one hand, the appellant claims that the Order-in-Original dated 06.07.2018 was communicated to him for the very first time only on 05.05.2022 when a copy of the said order was made available to him on a request being made whereas, on the other hand, the impugned order records that the said order was dispatched by speed post vide letter dated 06.07.2018. A single member bench of Mr P K Choudhary, Member (Judicial) observed that the initial burden to demonstrate that the order was sent by speed post with acknowledgement due is on the revenue. It is only when this initial burden is discharged by the revenue, only then the onus shifts to the addressee to prove to the contrary. “Since it was the specific case of the appellant before the Commissioner (Appeals) that the speed post was not delivered to him, hence it was incumbent upon the revenue to bring on record the date of speed post and the ‘acknowledgement’ of such speed post.”, the Tribunal observed. It was noted that the impugned order neither records the date on which the speed post was sent/dispatched nor the date of acknowledgement of the speed post. In the absence of the date of dispatch by speed post and date of acknowledgement, the revenue has failed to discharge the initial onus and therefore it cannot be said that the order dated 06.07.2018 was communicated to the appellant at any time on or around 06.07.2018. The CESTAT set aside the order and remanded the matter back to the Commissioner (Appeals) to decide the matter on merits after giving a personal hearing to the appellant. Support our journalism by subscribing to Taxscan premium. Follow us on Telegram for quick updates