2025 (5) TMI 1768 - HC - Customs

Customs Act Order Service: Speed Post Invalid, Appeal Limitation Determined by Actual Communication Date

HC analyzed the validity of service of an order-in-original (OIO) under pre-2018 Customs Act. The court found speed post was not a valid mode of service, ... Legality and validity of the mode of service of the order-in-original (OIO) - interpretation of Section 153 of the Customs Act, 1962 - barred by limitation - HELD THAT:- The only mode of service was by registered post. The service of order, decision and etc., by speed post was not provided prior to 2018. In the present case, the order was not communicated by registered post. Therefore, the date of communication of OIO must be taken as 27.10.2017. The appeal was filed well in time i.e., on 07.11.2017. Hence, the rejection of the appeal as time barred is unsustainable in law. Therefore, this Court deems it proper to quash the orders passed by the Additional Commissioner of Customs and the Commissioner of Customs (Appeals). The Writ of Certiorari is ordered. The order dated:23.09.2016 passed by the Additional Commissioner of Customs (Import-I) in No. 40/ADC/KV/Gr-V/2016-17 vide Annexure-C and the order dated:22.02.2018 passed by the Commissioner of Customs (Appeals) in OIA No. MUM-CUSTMSMP-298/2017-18 vide Annexure-E are quashed. This Court has held that the appeal filed by the petitioner is well in time hence, A direction is issued to the Authority to dispose of the appeal on the merits of the case. Resultantly, the Writ Petition is allowed. Because of the disposal of the Writ Petition, all pending interlocutory applications, if any are disposed of, and the interim order, if any granted by this Court, stands discharged. The core legal question considered in this judgment is whether the order-in-original (OIO) was validly communicated to the petitioner in accordance with the prescribed mode of service under the Customs Act, 1962, as it stood prior to its amendment in 2018, and consequentially, whether the appeal against the OIO was barred by limitation.The Court examined the legality and validity of the mode of service of the OIO dated 23.09.2016, focusing on the interpretation of Section 153 of the Customs Act, 1962, as it existed before its substitution by Act 13 of 2018. The petitioner contended that the OIO was not communicated by the prescribed mode-registered post or an approved courier-and that the petitioner only became aware of the order on 27.10.2017, after which the appeal was filed within the statutory period. The Department asserted that the OIO was duly served by speed post in 2016 and that the appeal was time barred.In addressing this issue, the Court referred to the statutory framework prevailing at the time of the OIO's issuance. Section 153, prior to its amendment effective from 29.03.2018, mandated service of any order or notice by tendering it personally, sending it by registered post, or by such courier as approved by the Commissioner of Customs. Service by speed post was not recognized as a valid mode of service under the Act at that time. The Court emphasized that since the OIO was not communicated by registered post or an approved courier, the service was not effected in accordance with the statutory requirements.The Court analyzed the facts and found that the petitioner became aware of the OIO only on 27.10.2017. Consequently, the date of communication of the OIO must be taken as 27.10.2017, not the date of the order in 2016. Since the appeal was filed on 07.11.2017, it was within the limitation period prescribed under the Customs Act. The rejection of the appeal as time barred was therefore unsustainable in law.The Court considered the Department's reliance on a Supreme Court decision cited by the respondents but observed that each decision is fact-specific and that the law on the mode of service under Section 153 before the 2018 amendment was clear and unambiguous. The Court held that the petitioner's appeal was validly filed within time, given the improper mode of service of the OIO.Accordingly, the Court quashed both the order dated 23.09.2016 passed by the Additional Commissioner of Customs (Import-I) and the order dated 22.02.2018 passed by the Commissioner of Customs (Appeals) which had rejected the appeal as time barred. The Court directed the Customs appellate authority to dispose of the appeal on merits.In conclusion, the Court held: 'The only mode of service was by registered post. The service of order, decision and etc., by speed post was not provided prior to 2018. In the present case, the order was not communicated by registered post. Therefore, the date of communication of OIO must be taken as 27.10.2017. The appeal was filed well in time i.e., on 07.11.2017. Hence, the rejection of the appeal as time barred is unsustainable in law.'This judgment establishes the core principle that the mode of service of orders under the Customs Act must strictly comply with the statutory provisions prevailing at the time of service. Any deviation from the prescribed mode renders the communication invalid, affecting the limitation period for filing appeals. The Court's final determination was to set aside the impugned orders and restore the petitioner's right to have the appeal adjudicated on merits.