Custom, Excise & Service Tax Tribunal
Anjan Roy vs Kolkata(Prev) on 13 July, 2023
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
REGIONAL BENCH - COURT NO.2
Customs Appeal No. 76645 of 2019
(Arising out of Order-in-Appeal No.KOL/CUS(CCP)/AA/192/2019 Dated 13.03.2019
passed by Commissioner of Customs (Appeals), Kolkata)
Shri Anjan Roy
(S/o Shri Anil Roy, Vill-Joypur, P.O.-Bonagaon,
North 24 Parganas, Pin-743235)
Appellant
VERSUS
Commissioner of Customs (Preventive), Kolkata
(Customs House, 15/1, Strand Road, Kolkata-700001)
Respondent
APPEARANCE :
Ms. Atika Sumran Ahmed, Advocate for the Appellant Mr. Tariq Sulaiman, Authorized Representative for the Respondent CORAM:
HON'BLE MR. R. MURALIDHAR, MEMBER (JUDICIAL) FINAL ORDER NO.76110/2023 Date of Hearing : 13 July 2023 Date of Decision : 13 July 2023 PER R. MURALIDHAR The Commissioner (Appeals) has rejected the Appellant's Appeal on the ground that the Appeal was filed with a delay of 326 days without going into the merits of the case. Being aggrieved, the Appellant is before the Tribunal.
2. The Learned Advocate submits that the OIO No. 88/JC(P)/CUS/WB/17-18 dated 08/02/2018 was not received by the Appellant from the office of the Adjudicating Authority. After waiting for more than four months, the Appellant filed a letter before the CPIO Office of the Commissioner of Customs, Kolkata seeking information as to whether any Adjudication Order has been passed against the Show Cause Notice dated 05/11/2013. The Appellant has received the copy of the OIO vide Speed Post docket No. EW12429081 8IN on 15/10/2018. Copy of the postal envelope giving the dockets details as well as copy of the consignment tracking note has been provided by the Appellant to fortify their submission that the OIO was received only on 15/10/2018.
2Customs Appeal No. 76645 of 2019 The Appellant also has enclosed a copy of the letter addressed by the Superintendent of Customs Adjudication to the Assistant Commissioner and CPIO on 19/06/2018 stating that the Show Cause Notice dated 05/11/2013 was adjudicated vide OIO No. 88/JC(P)/CUS/WB/17-18 dated 08/02/2018 enclosing therewith a copy of the OIO. The Appellant submits that reading together these documentary evidence, it gets clarified that they have received the OIO only on 15/10/2018 as they have filed the Appeal on 31/12/2018. Once the date of receipt of OIO is taken as 15/10/2018, the delay is only for about 17 days. The Commissioner (Appeals) is empowered to condone the delay upto 30 days. Therefore, she pleads that the present Appeal may be allowed by remanding the matter back to the Commissioner (Appeals) for disposal of the Appeal on merits.
3. The Learned AR provides copy of the letter received by them from the Office of the Commissioner of Customs, Kolkata giving the details of dispatch of OIO. The Dispatch Register extracts have been enclosed. The Learned AR submits that as per the record of Dispatch Register for Postal Docket dated 08/02/2018, the Order pertaining to the Appellant Anjan Roy, consisting of 24 pages is at serial number 1475 of this Book and the same has been dispatched by way of Speed Post on the same day. Therefore, as per him, the OIO was served on time and there was no delay of receipt of this OIO by the Appellant.
4. Heard both sides and perused the documents.
5. From the details produced by the Appellant seeking RTI response on 04/06/2018, it gets clarified that up to that date they have not received the copy of the OIO. Since this letter has been addressed on 4th June 2018, it can be taken that they have followed the necessary precaution of seeking this information within a short time after the Adjudication order was passed. The letter dated 14/06/2018 by the Superintendent, Customs clarifies that this is consequent to the RTI letter filed by the Appellant on 4th June 2018. After the Superintendent has sent the copy of OIO to the Assistant Commissioner and CPIO has dispatched the letter by Speed Post Docket No. EW12429081 8IN which 3 Customs Appeal No. 76645 of 2019 has been received by the Appellant on 15/10/2018 as can be seen from the consignment note tracking details submitted by the Appellant.
6. So far as the documentary evidence produced by the AR is concerned, the Dispatch Register for Postal docket clearly shows the details of documents recorded therein. In respect of the Appellant, against his name in the Speed Post details are not entered. It is seen that in the same page, in respect of about 11 parties, the Speed Post docket numbers are entered whereas in respect of other 12 parties, including in the case of the Appellant, the Speed Post docket details are missing. Therefore, the documentary evidence produced by the Department does not prove that the document was indeed dispatched on 08/02/2018.
7. On the other hand, in the documentary evidence produced by the Appellant, they have made effort by filing the RTI Application and finally received the OIO on 15/10/2018. Thereafter, they have filed the Appeal on 31/12/2018. In filing the Appeal on 31/12/2018, there is delay of about 17 days. The Commissioner (Appeals) has power to condone the delay up to 30 days in terms of Section 128 (1A) of the Customs Act, 1962.
8. Considering the factual details discussed above, I condone this delay and direct the Commissioner (Appeals) to take up the Appeal for disposal on merits. He will follow the principles of natural justice and pass a considered decision within 4 months from the date of communication of this order.
(Dictated and pronounced in the open court.) Sd/-
(R. Muralidhar) Member (Judicial) Pooja