Custom, Excise & Service Tax Tribunal
M/S. Vikram Trading Company vs Commissioner Of Customs (Sea), Chennai ... on 15 November, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
C/EH/40099/2016 and C/40282/2016
(Arising out of Order-in-Appeal C. Cus. II No.867/2015 dated 3.9.2015 passed by the Commissioner of Customs (Appeals II), Chennai)
M/s. Vikram Trading Company Appellant
Vs.
Commissioner of Customs (Sea), Chennai II Respondent
Appearance Shri G. Vijayabalan, Advocate for the Appellant Shri B. Balamurugan, AC (AR) for the Respondent CORAM Honble Shri D.N. Panda, Judicial Member Honble Shri Madhu Mohan Damodhar, Technical Member Date of Hearing / Decision: 15.11.2016 Final Order No. 42264 / 2016 Per D.N. Panda Appellant says that this appeal may be expeditiously heard since the appellant has suffered gravely for violation of natural justice before the appellate authority.
2. The ordered appealed before the appellate authority was not served on the appellant for which it was prevented to file the appeal within the limitation. However, learned Commissioner (Appeals) records that the order appealed was dispatched on 23.12.2010 and did not return back undelivered. But appellant objects to the said recorded fact on the ground that it had never received the order appealed before him. Therefore, it made a RTI application to get the copy of the impugned order for seeking appeal remedy before learned Commissioner (Appeals). Accordingly, when the order was served on 5.6.2015 through the RTI process, appeal was made on the basis of that order before learned Commissioner (Appeals). By that time, according to the appellate authority, there was a delay beyond the statutory period. Therefore he dismissed the appeal on limitation.
4. Revenue on the other hand says that the appellant was not at all conscious to cause appearance during adjudication. Although adjudication was fixed on four dates, there was no response from the appellant for which that was completed exparte and the order of finalization of assessment was communicated on 23.12.2010. Accordingly, they cannot have a plea that no Order-in-Original was served on the appellant when the proof of dispatch is available on record.
5. Heard both sides and perused the records.
6. Record reveals that although hearing was granted on 19.11.2010, 29.11.2010, 9.12.2010 and 20.12.2010, learned adjudicating authority did not look into the ground reality to complete the adjudication within three days of the last date of the hearing. The adjudicating authority although stated to have passed the adjudication order on 23.12.2010, he did not date the same. Only the preamble of the order shows that the order was passed on 23.12.2010 and dispatched on the same day. It is surprising that the adjudicating authority did not care to realize the demand arose out of adjudication order.
7. There is a prescribed mode of service of the order law. Learned Commissioner (Appeals) has not recorded whether compliance to such process of law was made by the adjudicating authority when he records that there was no return of the order dispatched. In absence of any enquiry, it would be justified to cause enquiry as to service of the order in accordance with law. Therefore, the matter is remanded to learned Commissioner (Appeals) who shall exercise his co-terminus power vested on him to effect enquiry as to whether the order was served on the appellant. If served, why the adjudicating authority kept quiet without realizing the demanded amount. It is a matter of concern that the public revenue should not be locked by a careless approach as is seen in the present case.
8. Learned Commissioner (Appeals) conducting an enquiry as stated above shall resolve the issue at his level for which the matter is remanded to him.
9. In the result, MA (EH) is disposed and the appeal is remanded to learned appellate authority.
(Dictated and pronounced in open court)
(MADHU MOHAN DAMODHAR) (D.N. PANDA)
Technical Member Judicial Member
Rex
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