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2022 (11) TMI 111 - HC - CustomsRejection 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.
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