M/S Synergy Global Sourcing Vs the Commissioner… — Writ and Judicial Review | Karnataka HC (2025)

M/S Synergy Global Sourcing Vs the Commissioner… — Writ and Judicial Review | Karnataka HC (2025)

What the court decided

AI extract

Outcome

Writ petition allowed and remanded: the impugned Order-in-Appeal No.239/2024 dated 04.04.2024 (Annexure-H) is set aside and the matter is remitted back to Respondent No.1-Appellate Authority (Commissioner of Customs (Appeals)) for consideration afresh on merits in accordance with law, without reference to limitation, which stands concluded in favour of the petitioners.

Issue for consideration

Whether the appeal filed by the petitioners on 14.03.2023 was within the prescribed limitation period of 60 days, in view of their contention that the order-in-original was not received by them until 19.01.2023. +2 more

Court's answer

In the absence of any material to show that the petitioner/appellant was aware of the order-in-original or that it was communicated to him prior to 19.01.2023, the appeal filed on 14.03.2023 was within the prescribed limitation period of 60 days from 19.01.2023 and clearly cannot be said to be barred by limitation.

Ratio / Principle

The burden of establishing service of the order-in-original rested heavily on the respondents, who failed to discharge it by adducing legal and acceptable evidence in accordance with law; the Appellate Authority committed a clear error in calling upon the petitioner/appellant to prove a negative fact and in concluding that the petitioner was aware of the order-in-original and that the appeal was barred by limitation.

Key takeaways

The impugned Order-in-Appeal at Annexure-H dated 04.04.2024 was set aside and the matter remitted back to Respondent No.1-Appellate Authority for consideration afresh on merits in accordance with law, without reference to the limitation, which stands concluded in favour of the petitioners by virtue of this order.ratio¶48

Detailed headnote1 paragraphs

CUSTOMS — Limitation for appeal — Non-receipt of Order-in-Original — Burden of proving service of the order rests on the authority issuing it; an assessee cannot be called upon to prove a negative fact of non-receipt. The Appellate Authority dismissed the appeal as time-barred merely because dispatch of the Order-in-Original (OIO) was shown (RTI reply indicating dispatch on 27.02.2021), without establishing actual receipt or knowledge by the appellant. Held: in the absence of material showing that the OIO was communicated to the petitioner prior to 19.01.2023, the appeal filed on 14.03.2023 fell within the prescribed 60-day limitation period and was not barred by limitation; the burden of proof of service rested heavily on the respondents, who failed to establish it by legal and acceptable evidence. Consequently, Order-in-Appeal No.239/2024 dated 04.04.2024 was set aside and the appeal remitted to the Commissioner of Customs (Appeals) for fresh consideration on merits in accordance with law, without reference to limitation.

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 22^ND DAY OF MARCH, 2025

BEFORE

THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO.27848 OF 2024 (T-CUS)

BETWEEN:

M/S. SYNERGY GLOBAL SOURCING, DOOR NO.5/486-A, KRISHNA GROUP COMPOUND, POST SIPCOT, HOSUR - 635 126, KRISHNAGIRI DISTRICT, TAMIL NADU.

Digitally signed by KAVYA R Location: High Court of Karnataka

(REPRESENTED BY MR. KETAN BHIMJI CHANDARANA, PARTNER AGED ABOUT 52 YEARS SON OF SRI. BHIMJI JETHALAL, IT IS A PARTNERSHIP FIRM.

SHRI. KETAN BHIMJI CHANDARANA, PARTNER OF M/S. SYNERGY GLOBAL SOURCING, RESIDING AT FLAT NO.B901, AJMERA STONE PARK, PHASE-I, MARGONDANAAHALLI, NEAR A2B RESTAURANT, NEELADRI, BANGALORE SOUTH ELECTRONICS CITY, BENGALURU - 560 100.

…PETITIONERS

(BY SRI. DAKSHINA MURTHY R., ADVOCATE)

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AND:

THE COMMISSIONER OF CUSTOMS (APPEALS), BMTC BUILDING, ABOVE BMTC BUS STAND, DOMLUR, BANGALORE - 560 071.

THE ASSISTANT COMMISSIONER OF CUSTOMS, AIRPORT AND AIR CARGO COMPLEX COMMISSIONERATE, DEVANAHALLI, BENGALURU - 560 300.

THE ASSISTANT COMMISSIONER OF CUSTOMS (CPIO), AIR PORT AND AIR CARGO COMMISSIONERATE, KEMPEGOWDA INTERNATIONAL AIRPORT, DEVANAHALLI, BENGALURU - 560 300.

…RESPONDENTS

(BY SRI. ARAVIND V CHAVAN, ADVOCATE FOR R1 TO R3)

THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT, QUASH THE ORDER-IN-APPEAL NO.239/2024 DIN NO. 20240472MR0000555C9D DATED 04.04.2024, IN ANNEXURE-H PASSED BY R-1 AND ORDERIN-ORIGINAL NO.124/2021, DIN NO.20210272MP0000010240/1704 DATED 25.02.2021 PASSED BY THE R-2 IN ANNEXURE - A AND ETC.,

THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR

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ORAL ORDER

In this petition, the petitioner has sought for the

following reliefs:

(a) Issue a writ of certiorari or such other Writ, Order or direction as this Hon’ble Court may deem fit, quash the Order-in-Appeal No.239/2024DIN No:20240472MR0000555C9D dated 04.04.2024, in Annexure H passed by Respondent No.1 and Order-inOriginal No.124/2021, DIN No:20210272MP0000010240/1704 dt.25.02.2021 passed by the Respondent No.2 in Annexure-A.

(b) Issue a writ of mandamus, or such other writ, order or direction, as this Hon’ble Court may deem fit and proper, to Respondent No.1 to hear the appeal filed by the Petitioner on merits expeditiously in a time bound manner by following the principles of natural justice.

(c) To direct the Respondent No.3 to furnish the complete information/documents sought for in the RTI Application dt.27.7.2024 in Annexure J filed by the Petitioner.

(d) To pass such other orders, directions and writs as this Hon’ble High Court may deem fit in the facts and circumstances of the case, and in the interests of justice, including the costs of this writ petition.

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Heard learned counsel for the petitioner and learned

counsel for the respondents. Perused the material on record.

A perusal of the material on record will indicate that respondent No.2 passed an order-in-original No.124/2021 dated 25.02.2021, which was challenged by the petitioners before respondent No.1-Appellate Authority in appeal No.239/2024, in which the petitioners filed an application for condonation of delay inter alia contending that the petitioners have not received the order-in-original till 19.01.2023, pursuant to which, the petitioners filed an appeal on 14.03.2023 within a prescribed period of 60 days. It is submitted that despite appellant having not received order-in-original prior to 19.01.2023 and appeal having been preferred on 14.03.2023 within prescribed period of 60 days, respondent No.1-Appellate Authority has proceeded to dismiss the appeal as barred by limitation on the ground that the appellant has not established that he has not received order-in-original earlier. In this context, learned counsel for the petitioners invites my attention to the reasoning and findings recorded by Appellate Authority in order to point out that the Appellate Authority has come to an erroneous conclusion that the petitioners were aware of the order,

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without appreciating that the order supposed to have been dispatched by respondent No.3 to the appellant, had not in fact been received by him and consequently the period of limitation has not started running so as to hold that the petitioner had filed appeal beyond prescribed period. It is therefore submitted that the impugned order passed by the Appellate Authority deserves to be set aside and the matter be remitted back to the Appellate Authority for consideration of the appeal in accordance with law.

Per contra, learned counsel for the respondents would submit that there is no merit in the petition and the same is liable to be dismissed and points out that by way of reply to the RTI application filed by the petitioner, the respondent No.3 had informed the petitioner that the order-in-original was dispatched as long back as on 27.02.2021 which was received by the petitioner/appellant, who is not entitled for any indulgence in present petition.

A perusal of the impugned order at Annexure-H dated 04.04.2024 will indicate that respondent No.1-Appellate Authority has come to the conclusion that the petitioners have failed to establish that they have not received the order-in-original. In this

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context, it is relevant to state that respondent No.1-Appellate Authority clearly fell in error in calling upon the petitioner/appellant to prove a negative fact without appreciating that the proof of service of order-in-original on the petitioner rests heavily on respondents who have not established the same by adducing legal and acceptable evidence in accordance with law. It is also significant to note that though the respondents have produced material to show that the notice was dispatched by them to the petitioner/appellant, the respondents failed to establish that the notice was actually received by the petitioner/appellant pursuant to the said dispatch and consequently in the absence of any material to establish that the notice alleged to have been dispatched by the respondents had actually been received by the petitioner/appellant who could be said to have knowledge about order-in-original, I am of the considered opinion that respondent No.1-Appellate Authority clearly committed an error in coming to the conclusion that the petitioner/appellant was aware of order-in-original and that the appeal barred by limitation.

Under these circumstances, as stated supra, in the absence of any material to show that the petitioner/appellant was

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aware about order-in-original and that same was communicated to him prior to 19.01.2023, appeal filed by the petitioner on 14.03.2023 was within prescribed period of limitation of 60 days from 19.01.2023 which clearly cannot be said to be barred by limitation and as such, impugned order passed by respondent No.1 deserves to be set aside and the matter be remitted back to concerned respondent No.1 for consideration afresh on merits in accordance with law.

In the result, I pass the following:

ORDER

(i) Writ petition is allowed and remanded ;

(ii) Impugned order at Annexure-H dated 04.04.2024 is set aside and the matter is remitted back to respondent No.1-Appellate Authority for consideration afresh on merits in accordance with law, without reference to the limitation, which stands concluded in favour of the petitioners by virtue of this order.

Sd/(S.R.KRISHNA KUMAR) JUDGE

SMJ

List No.: 1 Sl No.: 53