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2023 (6) TMI 556 - CESTAT MUMBAIMaintainability of appeal - time barred u/s 128 of Customs Act, 1962 - exporter has not realized the foreign exchange involved on the goods exported under the said Shipping bills as per Rule 16(A) (1) and (2) of Customs, Central Excise and Duties and Service Tax Drawback Rules, 1995 - HELD THAT:- Section 128 of the Customs Act, 1962 provides for filing of appeals before Commissioner (Appeals). According to the said section any person aggrieved by any decision or order may appeal to the Commissioner (Appeals) within 60 days from the date of the communication to him of such decision or order.[emphasis supplied] This section bars the Commissioner (Appeals) from condoning the delay beyond the period of 30 days. So what is relevant is the date of communication of the order of the adjudicating authority. Section 128 ibid which has been relied upon by the learned Commissioner (A) for dismissing the appeals on the ground of limitation, uses the words date of communication of order, which in my view is 13.9.2019 as the department failed to produce on record any evidence including the tracking record in support of their submission that the adjudication order was sent to the appellant immediately after the passing of the Order-in-Original. Merely by sending a copy of the Order-in-Original by speed post, the department cannot be said to have discharged their liability as they have to communicate the same to the appellant which means it has to be served on the assessee as the wording used in Section 128 ibid is ‘date of communication of order’ - In the instant case the appellant received copy of the Order-in- Original on 13.9.2019 the appeal before the learned Commissioner (A) was filed on 24.10.2019 which is well within a period of three months from the date of receipt/communication of the Order-in-Original. Therefore, the Commissioner (Appeals) has erred in rejecting the appeal on the ground of time bar. The matter is remanded back to the Commissioner (Appeals) to decide the same on merits after following the principle of natural justice within a period of three months from the date of receipt of this order. The appeal is allowed by way of remand.
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