2008 (2) TMI 22 - HC - Customs

Delay in filing of appeal before Comm.(A) Time for filing an appeal start running from the date when the copy of the order or decision is served Commissioner (Appeals) empowered to condone the delay and therefore directed to hear the matter the dispose the same according to law.

Summary

Issues involved: Appeal dismissal on the ground of limitation under Section 128 of the Customs Act, service of order under Section 153 of the Customs Act, exclusion of time for obtaining a copy of the order under Section 131(A) of the Act, condonation of delay under Section 120(A) of the Act.

Analysis:

1. The appeal was dismissed by the Commissioner of Customs and Central Excise on the basis that it was barred by limitation. The limitation for filing an appeal under Section 128(1) of the Customs Act starts from the date of communication of the decision or order. The order or decision must be served as per Section 153 of the Act, either by tendering it, sending it by registered post, or affixing it on the notice board of the customs house if other methods fail.

2. The petitioner had informed the authorities of a change in address, but subsequent communications and the show cause notice were returned undelivered. The petitioner argued that despite the address change notification, the communications were sent to the old address. The original order was also sent to the old address and returned undelivered. The petitioner claimed that the copy of the order was not handed over during the recording of the statement under Section 108 of the Customs Act.

3. The court analyzed whether the petitioner was served as required under the Customs Act. It was emphasized that the notice must be served in the prescribed manner for the limitation period to commence. Section 131(A) allows for the exclusion of time if the party was not furnished with a copy of the order when the notice was served. The duty to serve the order is on the revenue, and if not served, the time taken to obtain the copy should be excluded for computing the limitation under Section 128.

4. The court noted that the order was not served to the petitioner in the required manner as per Section 153, and there was no communication regarding the order being passed. The provision for service affecting the right to appeal must be strictly construed. The court concluded that there was no proper service under Section 153, and therefore, the exclusion of time under Section 131(A) did not apply.

5. As the delay in filing the appeal was not the fault of the petitioner, the court held that the delay should be condoned under Section 120(A) of the Act. The impugned order was set aside, and the Commissioner (Appeals) was directed to hear and dispose of the matter according to law. The petitioner's address for service of all orders during the appeal process was also confirmed.