Custom, Excise & Service Tax Tribunal
Ather Perwaize vs Kolkata-Port on 24 April, 2025
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
REGIONAL BENCH - COURT NO.2
Customs Appeal No. 75408 of 2023
(Arising out of Order-In-Appeal Nos. KOL/CUS(PORT)/KS/221/2023 dated 24.03.2023
passed by Commissioner of Customs (Appeals), Kolkata)
M/s. Ather-Perwaize
(M/s A & A Incorporated, 4B/2,
Topsia, 2nd Lane, Kolkata-700039)
Appellant
VERSUS
Commr. of Customs (Port), Kolkata
(15/1, Strand Road, 700001)
Respondent
APPEARANCE :
Shri Rishi Raju, Advocate for the Appellant Shri Tariq Sulaiman, Authorized Representative for the Respondent CORAM:
HON'BLE MR. R. MURALIDHAR , MEMBER (JUDICIAL) FINAL ORDER NO.75984/2025 Date of Hearing : 17th April 2025 Date of Pronouncement : 24.04.2025 [ORDER] PER R. MURALIDHAR The appellant has exported the goods during the period 2004- 2008 under 18 Shipping Bills. They were carrying on their business from 12/A, Anjuman Road, Kolkata-700014 which was a rented premises. Subsequently on 2/8/2009, the appellant surrendered their tenancy and moved to another place. They have also cancelled their Import Export Licence No. 0200013637 which was obtained at their old address.
2. The Department issued notice dated 22/06/2011 under Rule 16A of the Customs Central Excise Duties and Service Tax Drawback Rules, 1995 on the ground that the export realisations were not reflected in RBI's records. This notice was addressed to the old office address of the appellant. Hence, the same did not reach the appellant. Subsequently One ex-partie order-in-Original was passed on 30/05/2012 confirming demand of Rs. 8,88,737/-. Even this OIO was sent by the Adjudicating 2 Authority to the old address. The appellant came to know about the recovery notice only because of their Bank Current Account bearing no. 0084050073794 was frozen and the amount of 8,88,737/- was deducted on 30/11/2019 by the bank. The same was paid to the Commissioner of Customs. After this, they have made several correspondence and finally on 03/02/2021, they have received a copy of Order-In-Original No. KOL/CUS/AC/707(DBK)/2012 dated 29/05/12 along with copy of the Detention Order dated 26/9/2012.
3. Based on this communication dated 03/02/2021, the appellant has filed an appeal before Commissioner (Appeals) challenging the OIO dated 29/05/2012. The Commissioner (Appeals) granted Personal Hearing on 05/12/2022. On 24/03/2023, the impugned OIA No. KOL/CUS(PORT)/KS/221/2023 dated 24/3/2023, was passed by the Commissioner (Appeals) wherein relying on various case laws, he dismissed the appeal on account of the appeal being filed belatedly after many years whereas the appeal should have been filed within 60 days plus condonable period of 30 days from the date of OIO i.e. 29/5/2012. Being aggrieved, the appellant is before the Tribunal.
4. The Learned Counsel appearing on behalf of the appellant takes me through the chronological event as per the following Table:-
Date Event Pg. No. of
Appeal
Paperbook
2004-2008 Period during which export consignments were made, for 72, 230
which foreign exchange was allegedly not realized. 18 shipping bills are mentioned from 2004 to 2008. 02.08.2009 Appellant surrendered his tenancy at old address (12/A, 29 Anjuman Road, Kolkata - 700014) 04.08.2009 Appellant informed the Income Tax Officer with regard to 30 change in office address from 12/A, Anjuman Road, Kolkata - 700014 to 72, RAFI AHMED KIDWAI ROAD, KOLKATA - 700 016 September Appellant cancelled his Import Export License bearing 28 2009 no. 0200013637 which had registered address at 12/A, Anjuman Road, Kolkata - 700 014 ("old address") 22.06.2011 Demand notice issued to M/s. A & A Incorporated under Referred in Rule 16A of the Customs Central Excise Duties and page 72 Service Tax Drawback Rules, 1995 for realization of Rs. 8,88,737/-. The said notice was sent to the old office address of the Appellant.
18.01.2012 Personal hearing letters allegedly sent to the appellant, Referred in but appellant failed to attend as it was sent to old office page 72 address, and not received by the Appellant.
29.05.2012 Order-in-Original No. KOL/CUS/AC/707(DBK)/2012 70-72 3 passed by Assistant Commissioner of Customs demanding payment of Rs. 8,88,737/- (drawback amount) on the grounds that foreign exchange was not realized against export Shipping bills. Due to change in address, the appellant had not received the copy of the order.
26.09.2012 Detention Order dated 26.09.2012 issued under Section 69 142(1)(a)(b) of Customs Act, 1962 06.11.2012 Notice of demand sent to the appellant at the old 67, 68 address (12/A, Anjuman Road, Kolkata - 700014) 30.09.2015 Notice of order to defaulter dated 30.09.2015 sent to old 67 address (12/A, Anjuman Road, Kolkata - 700014). Notice demanded payment of Rs. 8,88,737/- within 7 days of the service of the notice.
29.11.2017 Notice of order to defaulter dated 29.11.2017 sent to old 66, 67 address (12/A, Anjuman Road, Kolkata - 700014). Notice demanded payment of Rs. 8,88,737/- within 7 days of the service of the notice.
31.12.2018 Recovery notice sent to old address for Rs. 8,88,737/- 65 referring to the Order-in-Original dated 29.05.2012, requiring payment within 7 days December Appellant made aware that his current account bearing 230 2019 no. 0084050073794 in the name of A&Z International maintained with UBI, Kolkata Branch was frozen 29.10.2019 Order bearing F. No. S-40-60/2012 STRC (Port) dated 31, 58 29.10.2019 was passed, based on which the bank account of the appellant was frozen 30.11.2019 Appellant was made aware that a sum of Rs. 8,88,737 58 was deducted from the account and paid to the Commissioner of Customs 06.12.2019 Appellant vide letter requests Assistant Commissioner to 31 de-freeze the account and provide copy of the recovery order and order in original 12.12.2019 Response from Assistant Commissioner of Customs 64 stating that recovery action under Section 142(1)(e)(ii) of Customs Act has already been initiated against the appellant and a letter of demand had been forwarded previously 14.07.2020 Letter from Federal Bank, New Market Branch, Kolkata 230 informing that payments were received against the shipping bills in question 29.06.2020 Appellant vide letter requests Deputy Commissioner to 32, 230 de-freeze the account and provide copy of the recovery order and order in original, explaining that they have received all payments against export consignments 05.10.2020 Appellant wrote to Customs authorities requesting details 229 of order dated 29.10.2019 12.11.2020 Appellant files a Right to Information Application seeking 58 information about order F. No. S-40-60/2012 STRC (Port) dated 29.10.2019 and previous orders 02.12.2020 Appellant was informed for payment of additional fees 66 under RTI 10.12.2020 Appellant submitted additional fees for RTI application 60 via postal orders 07.01.2021 Appellant was communicated the following orders 67 pursuant to his RTI application:
i. Notice of order to defaulter dated 29.11.2017 sent to old address ii. Notice of order to defaulter dated 30.09.2015 sent to old address iii. Notice of demand dated 06.11.2012 sent to old address 4 03.02.2021 Appellant received the copy of the order-in-original 70 bearing no. KOL/CUS/AC/707(DBK)/2012 dated 29.05.2012 along with the Detention Order dated 26.09.2012 22.03.2021 Appeal filed before the Commissioner (Appeals) 18 challenging the Order-in-Original dated 29.05.2012 05.12.2022 Personal hearing was attended by Shri S.C. Katho, -
consultant on behalf of the appellant 24.03.2023 Order-in-Appeal bearing no. 2-4, 13 KOL/CUS(PORT)/KS/221/2023 dated 24.03.2023 passed by Commissioner of Customs (Appeals), Kolkata, rejecting the appeal as time-barred on the following grounds:
- The Commissioner observed that there was inordinate delay of more than 9 years in filing the appeal, and found no merit in appellant's contention about not receiving communications due to change of address.
- It was held that the Appellant failed to produce evidence that change of address was communicated to the department;
- The department had sent numerous letters to appellant's registered address;
- The Appellant's action does not seem to be bonafide as they informed the department of their new address only after a cheque was dishonored and their bank account was frozen.
23.06.2023 Present appeal filed before the Customs, Excise and -
Service Tax Appellate Tribunal
5. He submits that the appellant had exported the goods during the period 2004-2008 and subsequently they also surrendered their Import Export Licence and vacated rented premises. Since there was no litigation with the Department, they did not inform the Revenue about the change of their address. To show their bonafides, he takes me through the communication addressed by them to the Income Tax department about the change of their address.
6. The Learned Counsel submits that the demand notice dated 22/6/2011 was addressed to the old office's address of the appellant. Even, the Personal Hearing letters were sent to that address. Hence, they were not aware of the proceedings being initiated by the Department. Similarly, OIO dated 29/5/2012 was also sent to the old address. Because of change of address, the appellant was not aware of the confirmed demand. The appellant submits that after coming to know about the freezing of their current account of their bank on 06/12/2019, they have written a letter to the Adjudicating Authority 5 stating that they were not aware of the details of confirmed demand and sought a copy of the Detention Order dated 29/10/2019. The Department sent their reply on 12.12.2019. These documents are extracted below:-
6 77. In response to the same, the Assistant Commissioner has replied vide letter dated 12/12/2019 and enclosed the copy of their earlier recovery letter dated 31/12/2018 [extracted above]. Subsequently, the appellant has filed one RTI application on 17/11/2020, seeking the full details of the demand under which the amount was frozen. Finally, on 03/02/2021, the reply to RTI was received along with a copy of the OIO dated 29/5/2012, copies of the same are extracted below:-
8 9 108. Therefore, the learned counsel submits that the date of communication of OIO should be treated 03/2/2021. Immediately on receipt of copy of OIO vide this letter dated 03/02/2021, the appellant filed their appeal on 22/3/2021 before the Commissioner (Appeals). He submits that if the date of communication of OIO is taken as 03/02/2021, the appeal would be taken as filed within the time limit of 60 days. The Commissioner (Appeals) is in error in not considering 03/2/2021 as the date of communication of OIO.
9. The appellant has relied on the following case law:-
11(i) Order-In-Appeal No. KOL/CUS(PORT)/KS/512/2024 dated 30/08/2024 passed in the case of M/s. Steel Authority of India Ltd.
Vs. Commr. of Customs, Kolkata.
(ii) R. Ravichandran Vs. Commr. of Customs, Chennai [2021 (377) ELT 895 (Tri. Chennai)
10. Based on the above submissions, the Learned Counsel prays that the present appeal may be allowed.
11. The Learned AR reiterates the findings of the Commissioner (Appeals) and submits that non-intimation of change of address by the appellant is a negligent act on their part. It is not the case that demand notice, Orders and subsequent communication were sent to the appellant on some other address other than the address available on the records of the Department. Therefore, the appellant cannot take the stand that the OIO was not served on them. He justifies the dismissal of the appeal by the Commissioner (Appeals). He prays that the present appeal also may be dismissed.
12. Heard both sides and I have gone through all the documentary evidence placed before me.
13. Admittedly, the appellant has surrendered their tenancy of the old address 12/A, Anjuman Road, Kolkata-700014 and they have also surrendered their Import Export License No. 0200013637 in September 2009. The appellant may be correct to hold the view that they are not required to intimate the change of address to the Department since no litigations were pending at that particular point of time. In general practice any person, who vacates the tenancy premises would intimate the concerned Post Office to re-direct the communication to the new address. This is required more so in the case of any business entity who is carrying on the business from the tenancy premises. While the appellant has tried to show their bonafides by enclosing of their copy written to the Income Tax Department, they have not come out with any evidence to show that they have intimated the concerned post 12 office to re-direct their letters to the new office address. This is the basic requirement which the appellant has failed to fulfill. This is a gross negligence on their part which has resulted in all the communications being sent by the department to the old address.
14. Further on going through the chronological Table and the documents placed before me, I find that the appellant has sent a letter on 06/12/2019 to the Assistant Commissioner from the present address i.e. 4B/2, Topsia 2nd Lane, Kolkata-700039. In Reply Notice letter, the Assistant Commissioner vide letter dated 12/12/2019 has replied to this new address stating that recovery action has been taken and has also enclosed copy of the Recovery Letter dated 31/12/2018 wherein the details of the OIO No. KOL/CUS/AC/70(DBK)/2012 dated 29.05.2012 has been clearly given. This shows that on 12/12/2019 itself, the appellant was very well aware that OIO dated 29/5/2012 was passed against them confirming demand of Rs.8,88,737/-. However, I find that the appellant has taken nearly one year to file their RTI Application on 17/11/2020 seeking further details and copy of the OIO. Since some defects were found like non-deposit of the additional fee, wrong address in the postal order, etc., finally the RTI application was considered and copy of OIO was sent on 07/01/2021 to the appellant.
15. Therefore on factual basis, the appellant has not brought in any concrete evidence towards intimation of change of address to the relevant post office. They have also not brought in proper evidence as to why after coming to know on 12/12/2019 about the Order dated 29/5/2012, they waited for almost one year to file their RTI Application on 17/11/2020. They should have approached the Adjudicating Authority after receiving the letter dated 12/12/2019 requesting him to issue a certified copy of OIO which could have been done across a table. Therefore, the factual details discussed above do not come to the rescue the appellant.
16. Coming to the case law of Steel Authority of India cited by the appellant, it is seen that in that case, the provisionally assessed Bills of Entry were finally assessed on 09/09/2022 but they were not 13 communicated to the Appellant. When they were finally communicated on 20/5/2023, the Commissioner (Appeals) has held that this should be taken as a date of receipt of the finally assessed Bills of Entry. In the present case, the facts are totally different as discussed above.
17. In the cited case of R. Ravichandran Vs. Commissioner of Customs, Chennai, it is seen from Para 3.2 that the appellant had intimated the change of address to the Department. It was noted that inspite of such communication given to the department, still the OIO was posted to the old address. In the present case, as has been noted above, no communication of this kind has been made by the appellant to the Department, nor have they taken care to intimate the post office to redirect their letters to the new address.
18. In view of the above detailed discussions, I do not find any merits in the present appeal. Accordingly, I dismiss the same.
(Pronounced in the open court on 24.04.2025.) Sd/-
(R. Muralidhar) Member (Judicial) Pooja