Order Date – 06 June 2023

Parties: Metro Fashions Vs Commissioner of Customs, Mumbai (Air Cargo Export)

Facts – 

• The Appellant, Metro Fashions, was issued with a demand cum show cause notice dated 31.8.2017 demanding Rs.1,58,101/- being the drawback amount obtained by the appellant for the exports made under the shipping bills. The demand was confirmed vide Order-in-Original dated 20.3.2018 with imposing penalty.
• The appeal filed on 24.10.2019 by the appellant was rejected on the ground of limitation without going into the merits of the appeal.
• It was contented by the appellant that they received the copy of order-in-original only on 13.09.2019 that too when they personally visited the authority’s office

Issue –

• Whether the learned Commissioner is justified in dismissing the appeal as time barred u/s. 128, Customs Act, 1962?

Order – 

• The Tribunal observed that 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 impugned order is set aside and the matter is remanded back to the Commissioner (Appeals) to decide the same on merits.