TMI Blog2021 (3) TMI 1203X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the goods in the baggage, there is also an issue of smuggling of gold. Further, the order passed by the Commissioner (Appeals) does not touch the merits of the case and is confined to the time-bar aspect in filing the appeal. So it would fall under sub-clause (b) of clause (1) of Section 129A of the Customs Act, 1962. The appellant has denied receipt of the Order in Original by registered post and has affirmed this by affidavit. When a letter is sent by registered post a presumption is to be drawn that it has been received by the addressee. However, such presumption is a rebuttable presumption. A negative fact can be established only by affidavit. When the appellant has affirmed the negative by filing an affidavit, the burden shifts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Appellant Shri M. Jagan Babu, AC (AR) for the Respondent ORDER The appeal has been filed against the order passed by Commissioner (Appeals) who rejected the appeal on the ground of being time-barred. 2. On behalf of the appellant, ld. Counsel Shri T. Kulasekaran appeared and argued the matter. It is submitted by him that the appellant was intercepted at the exit hall of the Anna International Airport with hand baggage, carton box etc. On suspicion, he was examined which revealed that he was carrying cigarettes, saffron in bags and gold which was concealed in his body. Proceedings were initiated and after adjudication, the original authority ordered for absolute confiscation of all the goods and imposed penalty of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... know about the copy of the Order in Original only when the consultant has received it by speed post on 16.12.2019. He prayed that the order passed by the Commissioner (Appeals) on the ground of time-bar may be set aside and the matter be remanded to the Commissioner (Appeals) for hearing the issue on merits. 3. The ld. AR Shri M. Jagan Babu appeared on behalf of the department. He adverted to page 6 of the Order in Appeal and argued that the acknowledgment card is placed as part of the Order in Appeal and would show that the registered post containing the Order in Original was served upon the appellant on 20.11.2019. Thus appeal has been filed after lapse of 113 days from the date of communication of the order. The appeal ought to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to in clause (b) if such order relates to (a) any goods imported or exported as baggage; (b) any goods loaded in a conveyance for importation into India, but which are not unloaded at their place of destination in India, or so much of the quantity of such goods as has not been unloaded at any such destination if goods unloaded at such destination are short of the quantity required to be unloaded at that destination; (c) payment of drawback as provided in Chapter X, and the rules made thereunder. 6. As per the above proviso, no appeal would lie before the Tribunal in respect of any order passed by Commissioner (Appeals) if such order relates to any goods imported or exported as baggage. In the present case, apa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served the letter on the person who is duly authorized by the appellant. The department has failed to establish these facts. The only conclusion that can be arrived therefore is that the order is served on some person other than the appellant. When the registered post is received by some person unknown to the appellant it cannot be said that the order is served or communicated to the appellant. The consultant of the appellant has obtained a copy of the Order in Original on 16.12.2019. The appeal then has to be filed within 60 days from 16.12.2019. The appellant has filed the appeal before Commissioner (Appeals) on 9.3.2020 which is beyond 60 days period. The Commissioner (Appeals) can condone delay of 90 days. The delay in this case would b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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