2022 (11) TMI 111 - HC - Customs

Rejection of revision application - rejection on the ground that the prayer made by the petitioner for condonation of delay was not substantiated - service of notice - section 153 of Customs Act - HELD THAT - What emerges upon a conjoint reading of various provisions is that if the order decision summon notice or communication is sent via registered post or speed post or courier it has to be accompanied with an acknowledgement due card/slip. Unlike a registered post where acknowledgement due card is the mode for recording delivery in cases where the mode of dispatch is the speed post the record of acknowledgement or delivery can only be gathered through the tracking report. This appears to be the mode which the Legislature has incorporated for effecting service of an order decision summon notice or communication issued under the Act or Rules. Admittedly in this case the order-in-appeal was not dispatched via registered post or through courier. What has emerged is that the order-in-appeal was attempted to be served via speed post - The documents relied upon by the respondent/revenue appear to indicate that an entry to that effect was made on 13.09.2017 whereas the actual dispatch took place on 16.09.2017. The tracking report would be crucial as it would establish clearly as to whether or not the order-in-appeal was served upon the petitioner. As noted above the respondent/revenue have not been able to place the tracking report. Therefore there is a semblance of doubt as to whether the order-in-appeal was actually served upon the petitioner. It appears the revisional authority did not ask itself the correct question which is whether the petitioner had in fact been served with the order-in-appeal. Since there is a doubt as to whether or not the petitioner had been served with the order-in-appeal the benefit of doubt should be given to the petitioner - if sub-section (3) of section 153 is read as being independent of the provision made in clause (b) of sub-section (1) of section 153 it would render the latter provision completely otiose. It would also have to be borne in mind that the impugned order has not been passed by the Revisional Authority on merits. Clearly it takes away from the petitioner the right of having the tenability of the order-in-appeal being tested on merits by the Revisional Authority and if we were to accept the presumption created by section 153 (3) of the Act the respondent would have to discharge the initial burden that the order-in-appeal was sent through post as claimed at the proper and complete address of the appellant. In view of the gaps we are inclined to lean in favour of the appellant as any other view would be a leap of faith. Impugned order set aside - the matter is remitted to the Revisional Authority. The Revisional Authority will pass a fresh order on merits after giving the petitioner an opportunity to present his case.

Summary

Issues:
Delay in approaching the revising authority for condonation, Service of order-in-appeal dated 06.09.2017, Interpretation of Section 153 of the Customs Act, 1962, Presumption of service on addressee, Completeness of address on postal receipt, Right to test the order-in-appeal on merits by Revisional Authority.

Delay in Approaching Revising Authority for Condonation:
The petitioner filed a writ petition against the order passed by the Revisional Authority under Section 129DD of the Customs Act, 1962, dismissing the revision application due to a delay in approaching the authority. The petitioner claimed lack of knowledge of the Order-in-Appeal dated 06.09.2017 until October 2020, resulting from the demise of the counsel handling the case. The petitioner argued that the delay was justified as he approached the Commissioner of Customs (Appeals) upon discovering the situation. The court noted the need to examine whether the petitioner was served with the order-in-appeal to determine the validity of the delay.

Service of Order-in-Appeal:
The primary issue revolved around whether the petitioner was served with the order-in-appeal dated 06.09.2017. The respondent/revenue claimed to have dispatched the order via speed post, supported by a photocopy of the speed post receipt dated 16.09.2017. However, discrepancies arose as there was a three-day gap between the dispatch register entry and the alleged dispatch date, raising doubts about the service. The absence of the tracking report further clouded the matter, leading to uncertainties regarding the actual service of the order.

Interpretation of Section 153 of the Customs Act, 1962:
The court delved into Section 153 of the Act, emphasizing the modes of service for notices, orders, or communications. The provision mandates service via registered post, speed post, or courier with acknowledgment due, with specific requirements for effective service. The court highlighted the importance of the tracking report for speed post deliveries to ascertain successful service, which was lacking in this case, casting doubt on the validity of the service.

Presumption of Service on Addressee:
Regarding the presumption of service under Section 153(3) upon the expiry of the transit period, the court outlined the rebuttable nature of the presumption. It stressed the necessity of complete and accurate addresses for addressees and the alignment of this provision with the requirements of clause (b) of sub-section (1) of Section 153. The incomplete address on the postal receipt and the absence of the original document raised concerns about the adequacy of service.

Right to Test the Order-in-Appeal on Merits:
The court highlighted the petitioner's right to have the order-in-appeal tested on merits by the Revisional Authority, emphasizing the importance of due notice and opportunity to be heard. Given the gaps and uncertainties in the service process, the court leaned in favor of the petitioner, setting aside the impugned order and remitting the matter to the Revisional Authority for a fresh decision on merits. The judgment underscored the need for a fair opportunity for the petitioner to present their case.

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