2008 (2) TMI 582

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.... Section 128(1) starts from the date of communication of the decision or order. Under Section 153 of the Customs Act an order or decision passed has to be served either by tendering the order or decision or by sending it by registered post to the person for whom it is intended or to his agent. The order or decision if it cannot be served in the manner as earlier set has to be done by affixing it on the notice board of the customs house. 3. Section 128(1) of the Customs Act, 1962 reads as under. "Any person aggrieved by any decision or order passed under this Act by an officer of Customs lower in rank than a [Commissioner of Customs] may appeal to the [Commissioner (Appeals)] [within sixty days] from the date of the communication to him of....

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....-1999 and the same was returned undelivered. It is also set out that while recording the statement under Section 108 of the Customs Act, order in original was shown to the petitioner. There is no finding or statement that on that day, a copy of the said order was handed over to the petitioner. 5. In these circumstances, the question arises, whether it can he said that the petitioner was served as required under the Customs Act. When the act provides for the manner in which the notice is required to be served and further when the limitation to file the appeal will commences from the date of service, then the notice must be served in the manner prescribed by the Act. Time for filing an appeal against the order will start running from the dat....

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....ed to must be strictly construed more so in case when there is no provision for condonation of delay or a specific period of delay also can be condoned. 7. Considering the above, in our opinion, there was no service as required under Section 153. The question of excluding time under Section 131(A) would therefore not arise. At the highest it can be said that the petitioner received the copy of the order in the reply filed by the respondents before this court. That could be considered for the commencement of the period of limitation as notice on the petitioner. The petitioner received the copy of the order of appeal on 7-6-2007. The appeal was preferred on 21-8-2007. It was therefore, open to the Commissioner (Appeals) to have condoned the ....