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2021 (7) TMI 726 - AT - CustomsService of order - appeal rejected on the ground of time limitation - burden to prove - power of DRI to issue SCN - HELD THAT:- From the facts, it is seen that the order-in-original was passed on 22.06.2016. From the dispatch register maintained by department, it is seen that the OIO was dispatched on 12.07.2016. However, there is no supporting evidence to show that the order has been served / communicated on the addressee. Dispatching a letter/consignment by registered post would raise a presumption that it is served upon the assessee. Such presumption is a rebuttal one - In the present case, the appellant has contended that they have not received the Order-in-Original. Then, the burden is on the department to establish that the order was communicated / served on the appellant. The word used in section 128 as well as 153 is communication of the decision, summons and notices. By merely sending a copy of the Order in Original by registered / speed post, the department cannot wash of their hands when they are duty bound to serve the same on the appellant. The department ought to have tracked the consignment and made sure that it has been delivered to the addressee. They can obtain a copy of the same from the website after tracking the consignment and keep the same in the file in the same manner they maintain dispatch register. This would be useful to prove that the Order in Original is served upon the addressee. Jurisdiction - power of DRI to issue SCN - HELD THAT:- The matters relating to power of DRI officers to issue SCN were taken up before the Hon’ble Supreme Court and many of the adjudication of the cases were kept in abeyance. Taking note of all these facts, it is convincing that appellant has put forward sufficient reason to establish that they were not aware of the adjudication order passed by the original authority and that they were not served with the adjudication order, as contended by department. The impugned order passed by the commissioner (Appeals) holding that the appeal filed is time barred is set aside. The matter is remanded to the Commissioner (Appeals) who shall consider the same on merits - appeal allowed by way of remand.
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