Customs Appeal Filed Next Working Day After Public Holiday Must Be Examined Under General Clauses Act: CESTAT [Read Order]

The Chennai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) set aside orders rejecting three customs appeals as time-barred and directed the Commissioner (Appeals) to examine whether filing on the next working day after a public holiday was valid under the General Clauses Act.

Shri Sai Shyam Associates filed the appeals in relation to import of used and worn clothing. The Commissioner (Appeals) had rejected the appeals against three Orders-in-Original on the ground that they were filed beyond the limitation period under Section 128 of the Customs Act, 1962.

Under Section 128, an appeal has to be filed within 60 days from the date of communication of the order. The Commissioner (Appeals) can condone a further delay of 30 days.

The appellant’s counsel argued that the rejection of the appeals was unsustainable. They submitted that the Commissioner (Appeals) had taken the appeals on record, granted personal hearing and accepted additional written submissions but later rejected them on limitation without properly verifying the date of communication of the Orders-in-Original.

The appellant’s counsel argued that the Orders-in-Original were received on 15 June 2018. On that basis, the limitation period expired on 13 September 2018. The appellant’s counsel submitted that 13 September 2018 was a public holiday on account of Ganesh Chaturthi, and the appeals were filed on the next working day, 14 September 2018.

The appellant’s counsel relied on Section 9 of the General Clauses Act. On merits, the appellant also argued that the value enhancement, confiscation, fine and penalty were not justified.

The revenue counsel supported the orders of the lower authorities and argued that the appeals had been correctly rejected as time-barred.

The two-member bench comprising Vasa Seshagiri Rao (Technical Member) and Ajayan T.V. (Judicial Member) observed that the date of communication of the order is the starting point for computing limitation. The tribunal found that the Commissioner (Appeals) had recorded a uniform delay of 91 days in all three cases without discussing the actual date of communication.

The tribunal pointed out that the impugned orders did not show any working or method for calculating the alleged delay. It also found that the appellant’s plea regarding the public holiday and filing on the next working day was not examined.

The tribunal held that the orders were non-speaking and contrary to natural justice. It set aside the orders and remanded the matter to the Commissioner (Appeals) to recompute limitation in accordance with law. If the delay is found within the condonable period, the appeals must be heard on merits after giving a fair hearing.

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