TaxTMI 
TaxTMI 
2008 (6) TMI 396
X X X X Extracts X X X X
X X X X Extracts X X X X
....that the order-in-original was sent to the Appellant/Applicant by Speed Post on 18-3-04 and the same was not returned back by postal authority with any remark as "undelivered", passed the impugned order holding that delay in filing appeal by Appellant before him on 3-1-05 was not condonable. While above confirmation was received by the ld. Commissioner, he also received Xerox Copy of the Speed Post receipt towards proof of dispatch made on 18-3-04. 2.2 The Appellant/Applicant filed first Appeal on 3-1-05 against order of adjudication dated 31-1-2004 indicating that the impugned order was received by it on 20-12-04. But according to ld. Commissioner (Appeals), order-in-original was properly dispatched according to law and not being returned back to the sender as undelivered, the Appeal filed before him with a delay of more than 9 (nine) months did not call for condonation since that Authority had no power to condone delay beyond statutory limit prescribed by law. Accordingly, the Appellate Authority below dismissed the Appeal by the impugned order dated 25-1-05. 3.1 Against the order of dismissal dated 25-1-05 as stated above, the Appellant/Applicant came before this Tri....
X X X X Extracts X X X X
X X X X Extracts X X X X
....submitted that the Appellant/Applicant had not at all received the order-in-original said to have been dispatched on 18-3-04 under different Speed Post Receipts claimed by Revenue. For such reason, on 12-3-08, the Appellant/Applicant requested Postal Authority to confirm whether an envelope under the Speed Post consignment No. ED501666814IN was actually sent to the Appellant/Applicant, and if so, whether acknowledgement was sent back to Central Excise Authorities. Again on 1-4-08, a reminder was issued to the said authority by the Appellant for confirmation. But the postal authority in response to the request of Appellant/Applicant informed that complaint of Appellant/Applicant cannot be entertained as per Rule since that was time-barred. Therefore, he submitted that Appellant/Applicant was therefore helpless to file the appeal reckoning limitation from 18-3-04 as claimed by Department for filing first appeal. The Appellant/Applicant having received attested copy of order of adjudication on 20-12-2004, it sought remedy of Appeal on 3-1-2005 before the ld. Commissioner (Appeals-IV), Kolkata and such filing was within 60 days of limitation. Therefore, dismissal of the app....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Act only indicate the manner of issuance of the notice or does it also prescribe, by implicity obliterating the expression 'shall be served' that there is no need to ensure that the notice has actually been received by the person concerned? (6) Does the combined reading of Sections 110(2), Section 124(a) and Section 153 of the Customs Act mean that the responsibility of a person issuing notice rest by merely sending it by registered post and that the person whose goods have been seized under Section 110 does not have any right of actually receiving the notice before the expiry of 6 months so as to invoke the benefit of release of goods conferred upon him under Clause (2) of Section 110 of the Act? The reason of reference to the Larger Bench of the Hon'ble Court as stated in Para 3 of the Judgment was that a ld. Single Judge in Opatape Fibres Pvt. Ltd. v. Collector of Customs, Calcutta - 1994 (74) E.L.T. 509 (Cal): 1995 (1) CHN 38 relying upon the decisions in the case of K. Narasimhiah v. H.C. Singri Gowda reported in A.I.R. 1996 SC 330 held that : "For the reasons aforesaid, it must be held that 'the notice is given contemplated by Section 110(2) of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the situations by using the word 'or'. In the event of the notice is tendered, the date on which the same was tendered should be taken as the date of giving of notice, but if the other option is exercised and the notice is sent by registered post the date of sending the notice should be the date of giving of notice as contemplated by Section 110(2) of the Act. Any other construction will render the legislative intent of equating tender with sending by registered post office." (3) Another Division Bench in the case of India Sales International v. Collector of Customs & Ors. reported in 100 C.W.N. 429, followed the Division Bench decision in Union of India v. Kanti Tarafdar - 1997 (91) E.L.T. 51 (Cal.) and held :- "In terms of the aforementioned provisions it is the duty of the Customs authorities to show that notice under Clause (a) of sub-section (1) of Section 124 was issued to the owners and failure to issue such notice within six months of seizure of the goods would entitle the owner the return of the goods from whose possession they were seized. Six months times under Section 110 starts from the date of despatch of notice by post. Reference in this connection may....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... under the Customs Act, shall be served (a) by tendering the order, decision, summons or notice or sending it by registered post to the person for whom it is intended or to his agent; sub-section (b) of Section 153 need not be referred to as it does not arise in this case. A notice had been sent by registered post duly addressed to the Appellant. The section requires that notice shall be served by sending it by registered post to the person for whom it is intended. The section does not require that effective service should be effected by the appellant receiving it. This position is made clear by reference to section 27 of the General Clauses Act which states that where any Central Act requires any document to be served by post, then, unless a different intention appeals, the service shall be deemed to be effected by properly addressing prepaying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. The normal presumption, unless the contrary is proved, is that the service shall be deemed to have been properly effected when a letter ....