Defective service and scheme change justified condonation of delay and remand for reconsideration under the revised export framework.

Service of the impugned order was held defective because it was pasted on the factory gate while the factory was locked, despite the department knowing the directors' address and not serving them by registered post with acknowledgment due; delay in filing the appeal was therefore condoned, the appeal being treated as within time from the later recovery notice. The order also became infructuous after the Development Commissioner permitted a switch from the E.O.U. scheme to the E.P.C.G. scheme, so the matter was remitted to the Original Authority for reconsideration under the Foreign Trade Policy 2004-09 and the revised scheme conditions.

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Issues: (i) whether delay in filing the appeal deserved condonation in view of the mode of service of the impugned order; (ii) whether the impugned order had become infructuous and the matter required remand in light of permission to switch from the E.O.U. scheme to the E.P.C.G. scheme.

Issue (i): whether delay in filing the appeal deserved condonation in view of the mode of service of the impugned order.

Analysis: The order was not served by registered post with acknowledgment due, but was pasted on the factory gate when the factory was locked and no responsible person was available. The record showed that the departmental authorities were aware of the directors' address, yet the order was not served on them. On these facts, the mode of service did not satisfy the legally required procedure, and the appeal was filed within limitation reckoned from the later recovery notice.

Conclusion: Delay in filing the appeal was condoned in favour of the assessee.

Issue (ii): whether the impugned order had become infructuous and the matter required remand in light of permission to switch from the E.O.U. scheme to the E.P.C.G. scheme.

Analysis: The Development Commissioner had permitted the assessee to switch over from the E.O.U. scheme to the E.P.C.G. scheme. Since the assessee sought to operate under the new scheme, the existing order, which proceeded on the earlier status, could not be given effect to in the changed circumstances. The matter therefore required reconsideration by the Original Authority so that the permission and conditions under the Foreign Trade Policy 2004-09 could be examined.

Conclusion: The impugned order was treated as infructuous and the matter was remitted to the Original Authority for proceeding in terms of the E.P.C.G. scheme.

Final Conclusion: The assessee obtained relief on limitation and on the substantive direction, with the dispute sent back for fresh action under the revised export scheme framework.

Ratio Decidendi: Where the statutory mode of service is not followed and the subsequent factual developments render the original order incapable of practical implementation, delay may be condoned and the matter remitted for reconsideration under the applicable revised scheme.

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