TaxTMI 
TaxTMI 
2007 (8) TMI 536
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....appeal is hit by limitation; (ii) Whether the department was right in issuing show-cause notice under Section 28(1) of the Customs Act to the appellant after a final order of assessment under Section 17 of the Act had already been passed in respect of the goods imported by them; and (iii) Whether a penalty can be imposed on the appellant for the misdeeds of their agents where no mala fides had been shown against the appellant. Learned Commissioner (Appeals) proceeded to examine issues (ii) and (iii) even after having found the appeal before him to be barred by limitation. Thus all the issues were held against the party. 2. After examining the records and hearing both sides, we note that the app....
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....A dated 8-3-2006. It appears from the records that the Order-in-Original was despatched to the appellant on 20-3-2006 but was returned undelivered with the postal remark "Party left. Hence returned to sender", dated 22-3-2006. It is not in dispute that the appeal against the Order-in-Original was filed with the Commissioner (Appeals) beyond 90 days from either of the two dates [20-3-2006 & 22-3-2006]. In other words, the appeal was filed beyond the condonable period of delay under the proviso to Section 128(1) of the Customs Act. Learned Commissioner (Appeals), after referring to Section 27 of the General Clauses Act, 1897, held the assessee's appeal to be time-barred. 3. In the present appeal, the appellant has reiterated that the ....
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....tion 128 of the Customs Act. Learned Commissioner (Appeals) took aid from Section 27 of the General Clauses Act also. We find that a similar factual situation was considered by the Hon'ble Madras High Court (Division Bench) in the case of P. Bhoormal Tirupati v. Additional Collector of Customs, Madras - 2000 (126) E.L.T. 65 (Mad.) and it was held that a show-cause notice issued to the party by the customs authorities, duly addressed and despatched by registered-post under Section 153 of the Customs Act and returned undelivered must be deemed to have been served on them inasmuch as it was not proved to the contrary. The relevant portion of the Hon'ble High Court's judgment is extracted below:- "The only point that arises is whether the se....
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....as sent to proper address, pre-paid and posted by registered post is not under dispute. No other attempt has been made to prove the contrary. The endorsement 'left' is not sufficient to prove the contrary. Apart from it, a reading of the section indicates that the proof to the contrary can only be limited to proving that the service had not been effected at the time at which the letter would be delivered in the ordinary course of post. We find no difficulty in coming to the conclusion that there has been proper service of notice. The Writ Petition was rightly dismissed. This appeal fails and it is dismissed." The decision cited by the Consultant was rendered by a learned Single Judge of the High Court. The decision of the Division Bench ....