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Appeal filed late cannot be dismissed without allowing opportunity to file condonation request

Hari Babu Vs Commissioner of Customs (CESTAT Chennai)

As per section 128 Clause (1) of Customs Act, 1962, the person aggrieved by the decision/order has to file the appeal within 60 days from the date of communication to him of such decision or order. The word used is “communication”. It implies that the Order-in-Original has to be put to the knowledge of the aggrieved person. Mere dispatch of the order cannot be communication of the decision/order. Further, section 153 speaks about service of order/decision. The word used is „service‟ of the order/decision and not dispatch of the order/decision. The words “service”as well as “communication”has to be construed to mean that such order is served or put to the knowledge of the aggrieved person. Further, even if th date of dispatch is reckoned for computing 60 days, the delay is less than 30 days and within the condonable period prescribed in the statute. When there is a defect in filing the appeal which can be rectified, the same has to be pointed out to the appellant before the appeal is heard on merits. The Appellant cannot be deprived of the remedy of appeal in a hyper-technical manner. Such ways adopted to increase disposals is deprecated.

From the foregoing, I find that the disposal of appeals on the ground of time bar cannot sustain. The impugned orders are set aside. The appeals are remanded to the Commissioner (Appeals), who shall give an opportunity to the appellant to file an application for condonation of delay. After considering such application, the appeal should be heard on merits. Ordered accordingly.

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