2005 (8) TMI 602

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....he assessee filed an appeal with the Commissioner of Customs (appeals) on 25-10-2004. The appellate authority found the appeal to be belated far beyond the condonable period of delay allowed under Section 128 of the Customs Act and accordingly the appeal was dismissed as time-barred. Hence the present appeal. 2. On an earlier occasion, learned Counsel for the appellants had sought leave of the Bench to raise a jurisdictional objection and we allowed the same vide Misc. Order No. 257/2006 dated 15-5-2006 [2006 (202) E.L.T. 663 (T)]. Accordingly, a new ground to the effect that the Deputy Commissioner of Customs was not competent to demand the above duty stands added to the grounds of this appeal. Both sides have been heard on the juris....

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....s Act. Sub-section (1) of this Section reads thus :- "Without prejudice to any power to make rules contained elsewhere in this Act, the Central Government may make rules consistent with this Act generally to carry out the purposes of this Act." (emphasis added) We have found an inconsistency between the recovery mechanism framed under Rule 8 ibid and the provisions of Section 28 of the Customs Act. Any rules made by Central Government under Section 156 for carrying out the provisions of the Act should be consistent with the Act itself. If any rule is inconsistent with any mandatory provision of the Act, the rule is redundant to that extent inasmuch as the provision of the Act has overriding effect. In this view of the matter, we have to o....

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....wherein it was inter alia held that the presumption of order being delivered to the party was a rebuttable presumption and that they could not be called upon to prove the negative in the process of such rebuttal. In the cited case, the department had not succeeded in establishing communication of order to the party and consequently the decision went in favour of the party. The facts are different in the instant case. Admittedly, the Order-in-Original was displayed on the notice board of the Customs House. It was thus notified to the parties concerned. Issue, service and communication of the order are comprised in its display on the notice board. Hence the date of display of the order on the notice board is the date of its communication as w....