M/S. Sarens Heavy Lift India Pvt. Ltd vs Commissioner Of Customs (Imports) ...

(Arising out of Order-in-Appeal No. 05/MCH/JC/GR-VA/2011 dt. 20.01.2011 passed by the Commissioner of Customs (Appeals), Mumbai-I )

For approval and signature:

Honble Mr. Anil Choudhary, Member (Judicial)

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1. Whether Press Reporters may be allowed to see : the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : of the Order?

4. Whether Order is to be circulated to the Departmental : authorities?

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M/s. Sarens Heavy Lift India Pvt. Ltd. : Appellant

VS

Commissioner of Customs (Imports) Mumbai-I : Respondent

Appearance

Shri Ms. Laxmi Memon, Advocate for Appellant

Shri Chatru Singh, Assistant Commissioner (A.R) for respondent

CORAM:

Mr. Anil Choudhary, Member (Judicial)

Date of hearing : 27/02/2015 Date of decision : 27/02/2015

ORDER NO.

Per : Anil Choudhary

The appellant have filed the present appeal against Order-in-Appeal No. 05/MCH/JC/GR-VA/2011 dt. 20.1.2011 by which Ld. Commissioner (Appeals) was pleased to dismissed the appeal holding the same to be time barred.

2. Heard the parties. The Ld. Counsel for the appellant urges that the Order-in-Original dt.7.12.2009 was issued on 21.1.2010 and the same was received by the appellant on 28.1.2010. The appeal was dispatched on 15.3.2010 by Speed Post dispatched from Okhla Industrial Area Phase-1,Post Office addressed to the Jt. Commissioner, New Custom House, Mumbai erroneously instead of being addressed to the Commissioner of Customs (Appeals), New Custom House, Mumbai. It is further stated by the appellant that the said appeal was received on 19.3.2010 vide Sr. No. 590 of the Inward Register of the New Customs House at Mumbai. Thereafter, the appellant had written letter dt.26.5.2010 addressed to the Commissioner of Customs (Appeals) stating therein that it had sent two appeals on 15.3.2010 through Speed Post but so far has not been given any notice for hearing enclosing along with the letter, copy of the appeal filed earlier against the impugned Orders-in-Original. The Counsel further states that two separate Orders-in-Original were passed against the appellant one at JNCH, Nhava Sheva and the other at New Customs House, Mumbai, give arise to two appeals and accordingly there was some confusion with respect to filing of the appeal and further correspondence in the matter. In response to the letter dt. 26.5.2010 of the appellant, letter was written by Appraising Officer in the absence of the Commissioner of Customs (Appeals) dt.29.9.2010 directing the appellant to file the appeal in the prescribed format with proper documents along with evidence of having submitted the appeal earlier by Speed Post on 15.3.2010, failing which the appeal may be treated as time barred. It appears that the appellant had sent a reply as stated by the Counsel. It is further stated that the Ld. Commissioner (Appeals) have failed to take reply on record and mis-construed the date of filing of the appeal as 28.5.2010 and accordingly erred in holding the appeal to be time barred by 2 months and 15 days over and above, the period of 60 days. A copy of the speed dispatch receipt dt.15.3.2010 have been filed at page 99 of memo of appeal which shows two appeals were dispatched on the same date.

3. Having considered the facts on record and after hearing the parties, I accept the date of filing of the appeal at 19.3.2010, and accordingly, hold that the appellant had filed the appeal before the Ld. Commissioner (Appeals) within time as provided under Act. Thus, the impugned order is set aside and the Ld. Commissioner (Appeals) is further directed to dispose of the appeal on merits after hearing the appellant. I hope that in the interest of justice, the Ld. Commissioner (Appeals) pass an order within a period of six weeks from the date of receipt of this order after affording an opportunity of hearing to the appellant. The appellant is directed to appear with the copy of this order before the Ld. Commissioner (Appeals) and seek an opportunity of hearing at the earliest.

(Pronounced & Dictated in court)

(Anil Choudhary) Member (Judicial)

Sm

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