TaxTMI 
TaxTMI 
2006 (5) TMI 99
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....dated 5-8-2005 dismissed the appeal as time barred on the ground that he has no power to condone the delay beyond the period prescribed under the statute. Aggrieved by the above said order of the first respondent, the above writ petition has been filed. 2. It is contended by the petitioner that the delay in filing the appeal was neither willful nor wanton and only due to the bona fide belief and understanding and no prejudice will be caused if the delay in filing the appeal is condoned and the appeal is permitted to be tagged along with the issue which is already allowed by the same Commissioner (Appeals) in respect of 68 other appellants. 3. A counter affidavit has been filed by the respondents, wherein it is stated as follows : (i) The Order-in-Original was passed on 7-5-2004 and the same was sent to the petitioner by Registered Post as contemplated under Section 153 of the Customs Act, 1962 (hereinafter called as the Act). But the same was returned on 19-5-2004 with the postal remarks "absent" and also "intimation delivered" on 12-5-2004 and 13-5-2004 respectively and therefore the petitioner had knowledge about the order sent by the respondent, but has purp....
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....bove submissions relied upon the following judgments, viz., (i) A.I.R. 1966 S.C. 330 (K. Narasimhiah v. H.C. Singri Gowda and others). (ii) 1994 (74) E.L.T. 509 (Cal.) (Oyatape Fibres Pvt. Ltd. v. Collector of Customs, Calcutta). (iii) 1987 (27) E.L.T. 209 (Ker.) (C.D. Govinda Rao v. Government of India). 7. Per contra Mr. V. Bharathidasan, learned ACGSC submitted that the order-in-original had been sent to the petitioner as contemplated in section 153 of the Act and the same was returned with the postal endorsements "absent" and "intimation delivered". The learned ACGSC further submitted that under Section 27 of the General Clauses Act, unless a different intention appears, the service shall deemed to be effected by properly addressing, pre-paying and posting by registered post. He further submitted that the endorsement in the returned cover "intimation delivered will suggest that the petitioner was deliberately avoiding to receive the order sent by Registered Post. The learned ACGSC further submitted that the above writ petition filed without exhausting the alternative remedy of appeal to the Tribunal is liable to be dismissed. In support of his subm....
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....hat the giving of notice contemplated by Section 79 is not the same thing as sending the notice." (iii) In 1994 (74) E.L.T. 509 (Cal.), the Learned Single Judge while considering the meaning to be given to the word "given" occurring in Sections 110(2) and 124(a) of the Act, by relying upon the judgments reported in A.l.R. 1966 S.C. 330 and 1987 (27) E.L.T. 209 (Cal.), held as follows: "......I have already held that a vested civil right to get the seized goods released in terms of section 110(2) of the Act arises as of right to the importer if no notice under section 124(a) is given within six months from the seizure of the goods, it must be held that the word "given", as used, in Sections 110(2) and 124(a) of the Act must necessarily mean that it must have been received by the importer or at least it must have reached the importer and that giving of notice is not completed only by sending it by registered post". In the said decision, his Lordship Mr. Justice Tarun Chatterjee as he then was referred to the decision of the Division Bench of this Court reported in A.I.R. 1974 Mad. 224 equivalent to 2000 (126) E.L.T. 65 (Mad.) and distinguished the same on f....
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....ve, but clarified the said observation with the further observation that of course such reckoning would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address. In the case on hand such an opportunity will not be available to the petitioner and therefore in the construed view of this Court, the above observation of the Honourable Supreme Court of India may not apply to the facts of this case. 12. Now we have to consider the applicability of the decision reported in 2000 (126) E.L.T. 65 (Mad) = A.I.R. 1974 Mad. 224. In that case, the Division Bench of this Court, was considering the correctness of the order of the Customs Authorities in the light of the requirements of Sections 110(2) and 124 of the Customs Act, in that case on behalf of the Customs Authorities the notice sent by Registered post and returned with the endorsement "left" on 13-5-1969 which was admittedly within six months was relied on, while on behalf of the appellant in that case it was stated that the notice with endorsement "left" was not proper service and therefore could not be relied on. In that context, the sufficiency of the ....
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....taken that the order-in-original had been served on the petitioner. Further, the learned ACGSC submitted that as contemplated in Section 153(b) of the Act the order was displayed in the Office Notice Board and hence when the order-in-original had been served as contemplated in Section 153 of the Act, the contention of the petitioner that the copy of the order was not served on him, as contended by the department but it was served only on 4-4-2005, is not acceptable. 13. All the three decisions relied upon by the learned counsel for the petitioner emphasizes on the meaning to be given to the word "given" occurring in the relevant statutes. But in the Division Bench judgment of this Court reported in 2000 (126) E.L.T. 65 (Mad) = A.I.R. 1974 Mad. 224, the sufficiency of service in the light of Section 153 of the Act has been dealt with and it is held that if the notice (in that case) sent by Registered Post but returned with the postal endorsement "left" has been considered to be sufficient service. Further, the mode of service contemplated in Section 153(b) of the Act has also been completed in this case by displaying the order-in-original in the Notice Board of the office of the ....