TMI Blog2004 (10) TMI 244X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner that they have not received the Order-in-Original No. 64/01, dated 20-10-2001 and they came to know about the Order-in-Original only when the Department furnished a copy of the Order-in-Original No. 64/01, dated 20-10-2001 along with the covering letter dated 14-7-2003. It was submitted by them before the Commissioner (Appeals) that immediately on receipt of the copy of the Order-in-Original from the Department, they preferred an appeal within 60 days, but the Commissioner has not accepted their explanation and proceed to note in his order that the Department has dispatched the Order-in-Original No. 64/01 vide O.C. No. 5821, dated 9-11-2001 and accordingly he dismissed the appeal being time barred. The case was heard on few occasio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T - Del.) wherein it was held that Section 128 of Customs Act, 1962 creates a statutory right to file appeal within 3 months from the communication of the order. It was also held that presumption of delivery is a rebuttable presumption. It was also held that Revenue has not succeeded in establishing the communication of order of the Commissioner to the appellants. She submits that the extract of the register itself shows a wrong PIN Code and therefore, it is very clear that the Order-in-Original has not been served on them. She submits that the appellants have nothing to gain by not filing the appeal whereas they will be the loser for not filing the appeal. She submits that since the Order-in-Original No. 64/01, dated 20-10-2001 was communi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, the register itself shows wrong PIN Code. Therefore, the Department has not succeeded in establishing communication of order to the appellants. Moreover, the appellants have nothing to gain in not filing the appeal, whereas they will be loser in not filing the appeal. The appellants have succeeded in establishing that the Order-in-Original has not been served on them. Therefore the plea of the appellants that the order was communicated by the Department only on 17-7-2003 should be accepted. The appeal has been filed within the statutory period under Section 128 of the Customs Act and therefore, the impugned order of the Commissioner (Appeals) is not just and proper. We, therefore, set aside the impugned order and remand the appeal to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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