2008 (2) TMI 582

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..... ment per : F.I. Rebello, J. (Oral)]. - Rule Heard forthwith. 2. The appeal preferred by the petitioner herein was dismissed by the Commissioner of Customs and Central Excise (Appeals) Goa on the ground that the appeal was barred by limitation. An appeal lies under Section 128 of the Customs Act. The limitation provided under Section 128(1) starts from the date of communication of the decision or order. Under Section 153 of the Customs Act an order or decision passed has to be served either by tendering the order or decision or by sending it by registered post to the person for whom it is intended or to his agent. The order or decision if it cannot be served in the manner as earlier set has to be done by affixing it on the notice board of .....

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..... back as undelivered. It is the case of the petitioner that the communications were addressed at the address from which he had already shifted and inspite of the fact that he had communicated the new address. The order further shows that the original order was sent by registered post as per the address on the import documents dated 30-7-1999 and the same was returned undelivered. It is also set out that while recording the statement under Section 108 of the Customs Act, order in original was shown to the petitioner. There is no finding or statement that on that day, a copy of the said order was handed over to the petitioner. 5. In these circumstances, the question arises, whether it can he said that the petitioner was served as required un .....

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..... A perusal of Section 131(A) would show that it requires that the notice or the order be served. In other words, if not the order atleast a communication to be given to the petitioner that order has been passed. That also has not been complied with. A provision for service as it has an effect on the remedy of appeal which party is entitled to must be strictly construed more so in case when there is no provision for condonation of delay or a specific period of delay also can be condoned. 7. Considering the above, in our opinion, there was no service as required under Section 153. The question of excluding time under Section 131(A) would therefore not arise. At the highest it can be said that the petitioner received the copy of the order in .....

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