Customs Appellate Authority Dismissed Appeal citing Delay: CESTAT Sets aside order finding Timely submission u/s 128 of Customs Act [Read Order]

The Kolkata bench of theCustoms, Excise, and Service Tax Appellate Tribunal (CESTAT) set aside the order finding timely submission under section 128 of the Customs Act, 1962, and the appellate authority dismissed the appeal, citing delay.

Susanta Kumar Sahoo, the appellant assessee has filed the appeal against the Order-in-Appeal No. KOL/CUS(CCP)/AKR/853/2020 dated 08.12.2020 wherein the Commissioner of Customs (Appeals), 3rd Floor, Custom House, 15/1, Strand Road, Kolkata- 700 001 has dismissed the appeal filed before him by the appellant herein on the ground that the appellant had filed the said appeal after the expiry of 60 days in violation of Section 128 of the Customs Act, 1962; the appellant had not filed any request for condonation of the delay. The appeal thus has been rejected on the grounds of time-bar by the Commissioner (Appeals).

During the course of hearing, the Counsel appearing on behalf of the appellant submits that there was no delay in filing the said appeal before the Commissioner (Appeals) in this case. He submitted that the Order-in-Original issued on 22.02.2017 has been received by them on 01.03.2017.

In support of this, the Counsel for the appellant has submitted evidence of endorsement of the date “01.03.2017” as date of delivery by the postal authorities. It is therefore his contention that the said appeal filed by the appellant, on 28.04.2017, is within the time-limit of sixty days available for filing an appeal before the Commissioner (Appeals) and accordingly, there was no delay in filing the said appeal before the Commissioner (Appeals) in this case.

The appellate authority has dismissed the appeal filed by the appellant on the ground that the said appeal had been filed beyond the period of sixty days as prescribed under Section 128 of the Customs Act, 1962.

However, on verification of the documents, the single bench of K. Anpazhakan, Member (Technical) held that the Order-in-Original issued on 22.02.2017 was delivered to the appellant only on 01.03.2017. The tribunal observed that the appellant has produced evidence of delivery by the postal authorities. The evidence submitted by the appellant clearly indicates that the Order-in-Original was received by the appellant only on 01.03.2017.

As the appellant has filed the said appeal before the Commissioner (Appeals) on 28.04.2017, the tribunal held that the appellant has filed the said appeal within the time-limit specified under Section 128 of the Customs Act, 1962 and there is no delay in filing the said appeal before the Commissioner (Appeals).

The court set aside the impugned order and remanded the matter to the Commissioner (Appeals), for deciding the issue on merits. The appellate authority is directed to follow the principles of natural justice and arrive at a decision within a period of three months from the date of receipt of this Order.

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