TaxTMI 
TaxTMI 
2008 (8) TMI 280
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....d 30-6-92, the petitioner had submitted that the gold was purchased by him under a baggage receipt No. 00840, dated 20-4-92 and it was cleared on arrival at the Bombay Air Port by Abu Becker of Kerala, from whom the gold biscuits had been purchased by the petitioner. 3. It has been further stated that the Additional Commissioner of Customs had issued a show cause notice calling upon the petitioner to explain as to why the gold biscuits should not be confiscated, under Section 111(d), (i) and (m) of the Customs Act, 1962, and as to why personal penalty should not be imposed on the petitioner, under Section 112 of the Act. The petitioner had submitted his detailed objections to the Additional Commissioner of Customs and he had produced the original baggage receipt for his verification. During the course of the personal hearing the petitioner had established that the gold in question was acquired and possessed by the petitioner through proper channel. However, the Additional Commissioner of Customs had confiscated the gold based on the initial statement made by the petitioner and also by stating that the baggage receip....
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....e of hearing of the appeal, both factual and legal statements could not be made on the said issue. Therefore, the Commissioner of Customs (Appeals) was not justified in dismissing the appeal on the ground of limitation, without giving the petitioner an opportunity to address the said issue. 5. It has been further stated that the petitioner had filed an appeal before the first respondent Tribunal, on 30-5-2000, challenging the order of the second respondent, specifically, stating that the order of the second respondent was illegal, arbitrary and against the principles of natural justice. The petitioner had further submitted that since the Order-in-Original had not been served on him, under Section 153 of the Customs Act, 1962, there was no proper service of the Order-in-Original on the petitioner. For all practical purposes, with regard to the issue of limitation, the date of service of the Order-in-Original would be the date on which the petitioner had received a copy of the said order from the Superintendent of Customs with a covering letter, dated 21-12-99. Section 153 of the Customs Act, 1962, reads as follows: "153. Service of order, decision etc.- Any order or decision passe....
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....that the petitioner had possessed the gold, illegally, as there was no baggage receipt produced by him at the time of the seizure. The adjudication Order-in-Original had been furnished to the petitioner by Registered Post on 1-2-94. Even at the time of his prosecution before the Additional Chief Metropolitan Magistrate, Egmore, in C.C.No.11 of 1996, a copy of the adjudication order had been produced. The petitioner did not deny, the receipt of the said order during the course of the trial or thereafter. However, with an ulterior motive, the petitioner by his letter, dated 28-10-99, had sought for the copy of the order. The department had furnished a copy of the adjudication order, on 21-12-99, clearly indicating that the order had been furnished to him only after the adjudication, on 1-2-94, by registered post, to the address available on the records given by him. Therefore, the petitioner had preferred an appeal before the appellate authority. The appellate authority after considering the contentions raised on behalf of the petitioner had held that the order had been duly served on the petitioner by Registered Post, on 1-2-94, in terms of Section 153 of the Customs Act, 1962. The ....
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....easons have been given as to how the appeal was belated. Normally, if an appeal had been filed beyond the period prescribed for filing of such an appeal, it would have been returned if it was found that it had been filed without a petition to condone the delay in filing the appeal. Instead, the case had been heard on merits. However, the appeal had been dismissed by the appellate authority based on the issue of delay. No opportunity had been given to the petitioner to explain the delay, if any, during the hearing of the appeal by the second respondent. Since the appeal had been numbered and the waiver application had also been numbered, without being returned, it clearly shows that the appellate authority had impliedly accepted that the appeal had been filed within the time prescribed by law, as provided under Section 128 of the Customs Act, 1962, which reads as follows: "128. Appeals to Commissioner (Appeals).- (1) 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 such decision or order: Pr....
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....despatched to him by registered post, it is deemed to have been served on the petitioner, as provided under Section 153 of the Customs Act, 1962. Therefore, the appeal filed by the petitioner before the appellate authority was out of time. Thus; the first respondent Tribunal had dismissed the appeal confirming the order, dated 20-4-2000, passed by the second respondent. 10. The learned counsel appearing on behalf of the respondents had submitted that the service of any order, summons, or notice, issued under the Customs Act, 1962, shall be served by tendering the order, decision, summons or notice, or by sending it by registered post to the person, for whom it was intended or to his agent. If the order, decision, summons or notice cannot be served in the manner provided in Clause (a) of Section 153 of the Act, then, the same could be served by affixing it on the notice board of the Customs House. Even if the order, dated 11-1-94, had not been received by the petitioner, it would be deemed to have been served on him, if it had been sent by Registered Post. It has been stated that the Order-in-Original, dated 11-1-94, issued by the Additional Commissioner of Customs (Preventive), Ch....
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....ation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying 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." It has also been stated that the acknowledgement of the postal department is on 1-2-94. Since service of the order shall be deemed to have been effected on 1-2-94, the appeal filed by the petitioner on 28-1-2000, after a delay of nearly six years had been rightly rejected by the appellate authority, by his order, dated 20-4-2000, made in C4/48/0/2000-SEA.CUS. 290/2000. The appeal filed by the petitioner before the first respondent Tribunal (CEGAT) had also been rightly dismissed by an order, dated 31-10-2000, confirming the order passed by the appellate authority on 20-4-2000. Hence, the writ petition filed by the petitioner is devoid of merits an....