Service by Affixture Deemed Invalid; Appeals Within Limitation Period; Condonation of Delay Applications Disposed

The Tribunal held that the service of notice by affixture was invalid as it did not comply with the requirements of Section 153 of the Customs Act, 1962. As the service was deemed to have occurred on 7th June 1994, the appeals filed on 22nd August 1994 were within the limitation period. The applications for condonation of delay were therefore considered infructuous and disposed of accordingly.

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Issues Involved:
1. Condonation of Delay
2. Validity of Service of Notice
3. Applicability of Section 153 of the Customs Act, 1962

Issue-wise Detailed Analysis:

1. Condonation of Delay:
The appellants, M/s. Gold'n Sand and M/s. Sathya Deep Exports, filed appeals against the order of the Collector of Customs, Kandla, alleging improper service of notice. The appeals were received on 22nd August 1994, and applications for condonation of delay supported by affidavits were filed. The appellants argued that the show cause notice was issued on 24-5-1993 and received at the Delhi address, with the order being passed on 15-3-1994 and issued on 25-3-1994. They contended that the order was returned by postal authorities with the remark "left without leaving address" and that service by affixture was illegal. The appellants vacated the premises in 1988, and the order was received by their advocate on 7th June 1994, who served it on the appellants on 1st July 1994. Thus, if 7th June 1994 is considered the service date, the appeal filed on 22nd August 1994 is within the limitation period, making the condonation applications infructuous.

2. Validity of Service of Notice:
The respondent argued that the appellants had two addresses, and the order was sent to the Kandla Free Trade Zone address and displayed on the Notice Board on 13-4-1994 as per Section 153(b) of the Customs Act, 1962, after failing to serve at the Kandla address. The appellants contended that they had vacated the Kandla premises in 1988, and the show cause notice was received and replied to from the Delhi address. The service by affixture was deemed invalid by the appellants as it was ordered before the postal authorities returned the order.

3. Applicability of Section 153 of the Customs Act, 1962:
Section 153 outlines the procedure for service of orders, decisions, summons, or notices. Clause (a) specifies service by registered post to the person or their agent, and clause (b) allows affixture on the customs house notice board if service under clause (a) fails. The appellants argued that service by affixture was invalid as it was ordered before exhausting the method under clause (a). The Tribunal examined the original postal envelope and noted that the service by affixture was ordered on 13-4-1994, while the postal authorities returned the order on 21-4-1994. The Tribunal cited precedents, including the Supreme Court's decision in Payal Ashok Kumar Jindal v. Captain Ashok Kumar Jindal, which emphasized the necessity of effective service. The Tribunal concluded that service by affixture without exhausting clause (a) was invalid. Consequently, the appeals were deemed within the stipulated period, and the applications for condonation of delay were disposed of as infructuous.

Conclusion:
The Tribunal held that the service of notice by affixture was invalid as it did not comply with the requirements of Section 153 of the Customs Act, 1962. As the service was deemed to have occurred on 7th June 1994, the appeals filed on 22nd August 1994 were within the limitation period. The applications for condonation of delay were therefore considered infructuous and disposed of accordingly.

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