Customs Fails to Prove 2019 Order Served: CESTAT Treats 2021 Attested Copy as Service Date, says Appeal File on Time [Read Order]
Since the appeal was filed within the prescribed time from this date, the tribunal found no delay and remanded the case to the Commissioner (Appeals).
![Customs Fails to Prove 2019 Order Served: CESTAT Treats 2021 Attested Copy as Service Date, says Appeal File on Time [Read Order]](https://images.taxscan.in/h-upload/2025/08/11/2075459-customs-fails-order-served-cestat-service-appeal-taxscan.webp "Customs Fails to Prove 2019 Order Served: CESTAT Treats 2021 Attested Copy as Service Date, says Appeal File on Time [Read Order]")
The Kolkata Bench of Customs Excise and Service Tax Appellate Tribunal ( CESTAT ) held that the department failed to prove service of the Order-in-Original dated September 2019 and accepted the date of issuance of an attested copy in March 2021 as the actual date of service. Hira Lal Prasad, appellant-assessee, had filed an appeal before the Commissioner (Appeals) on...
The Kolkata Bench of Customs Excise and Service Tax Appellate Tribunal ( CESTAT ) held that the department failed to prove service of the Order-in-Original dated September 2019 and accepted the date of issuance of an attested copy in March 2021 as the actual date of service.
Hira Lal Prasad, appellant-assessee, had filed an appeal before the Commissioner (Appeals) on 05.04.2021, challenging the Order-in-Original dated 20.09.2019. The assessee submitted that the said order, dated 20.09.2019/23.09.2019, was never received.
It was only upon request that an attested copy of the adjudication order was issued by the Assistant Commissioner (Adjudication) on 08.03.2021. Following receipt of the attested copy, the appeal was filed within a month, on 05.04.2021.
However, the Commissioner (Appeals) held that the OIO had been served on 20.09.2019/23.09.2019 and concluded that the appeal was filed with a delay of approximately 17 months. Referring to the proviso to Section 35 of the Central Excise Act, 1944, which allows condonation of delay only up to 30 days beyond the prescribed period, the Commissioner (Appeals) dismissed the appeal as time-barred. Aggrieved by this decision, the assessee appealed before the tribunal.
A single member bench of R. Muralidhar (Judicial Member) noted that the assessee had claimed non-receipt of the Order-in-Original dated 20.09.2019/23.09.2019. The assessee became aware of the order only after receiving a recovery notice dated 29.06.2020 and subsequently wrote multiple letters to the jurisdictional Assistant Commissioner.
An attested copy of the order was finally issued on 08.03.2021, after which the appellant made the required pre-deposits and filed the appeal on 05.04.2021.
It was observed that the department failed to provide proof of service of the original order and still issued an attested copy in March 2021. The tribunal held that mere despatch is not proof of service, the actual date of service of order needs to be proved.
The appellate tribunal found that the appeal was filed on time and there was no delay on the assessee's part. It sent the matter back to the Commissioner (Appeals) with instructions to follow principles of natural justice and complete the proceedings within three months.
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