TMI Blog1995 (2) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... dress giving his address and the appellants had waived the personal hearing. The order was passed on 15-3-1994 and issued on 25-3-1994. He further stated that the Bench had ordered the production of the original records and he has been told by the learned SDR that original records are with him. He pleaded that Section 153 of the Customs Act, 1962 lays down the procedure and mode of service and notice has to be served in terms of Section 153 and first it has to be sent to the party or his agent and the authority can resort to Section 153 (b) which is the mode by affixture on the notice board of the customs house only in the event of failure of service under Section 153 (a). He pleaded that in the present matter, the order was returned by the postal authorities on the ground left without leaving address and it was sent by the Delhi postal authorities on 21/4/94 whereas the order for effecting service by affixture is dated 13/4/94 which is prior to the return of the papers from Delhi postal authorities and as such service by afixture is illegal and bad in the eyes of law. He pleaded that since the appellants had vacated the premises in the year 1988 and as such there was no question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 994 though the postman had visited the premises of the appellants at Delhi address i.e. D-19, Okhla Phase No. 1 on 18th and 19th April, 1994 too. He pleaded that since the service at Kandla Free Trade Zone was before 13th April, 1994 and as such the service by affixture on 13th April, 1994 is a valid service in the eyes of law. He pleaded for rejection of the condonation of delay applications. 3. In reply, Shri L.P. Asthana, learned advocate again reiterated that since the appellants had left the Kandla Free Trade Zone in the year 1988 and as such, there was no question of any service on the appellants at Kandla Free Trade Zone. He pleaded that the show cause notice was received at Delhi and the reply was sent from Delhi. He stated that nobody was living at Kandla and the appellants had waived the personal hearing at Kandla. He pleaded for the disposal of the condonation of delay applications as argued by him. 4. We have heard both the sides and have gone through the facts and circumstances. It is an admitted position that appeals were filed on 22nd August, 1994. The impugned order is dated 15th March, 1994 and was issued on 25th March, 1994. We have perused the order where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of M/s. Gold n Sand which was delivered at Delhi address vide registered letter No. 496, dated 13-4-1994 from the Kandla Free Trade Zone post office and the postman visited the premises of the appellants in Delhi at D-19, Okhla Phase No. 1 on 18-4-1994, 19-4-1994 and finally on 21-4-1994. The postman writes Left WL Add . Apparently it means Left without leaving address . It was returned by the postal authorities at Delhi on 21-4-1994. The service stamps have been cancelled by the postal stamp dated 13-4-1994 at Kandla. This means that it was sent by the Kandla Postal authorities to Delhi on 13th April, 1994. In any case, it is apparently clear that papers at Delhi were received after 13th April, 1994 whereas the service is dated 13-4-1994. Hon ble Supreme Court in the case of Payal Ashok Jindal v. Captain Ashok Kumar Jindal, reported in 1992 (60) E.L.T. 19 (S.C.) in Para 13 had held as under : - 13. In any case - realising the requirements of natural justice - the Family Court, sent two registered notices to the appellant at her Noida address and also at the address given by her in the proceedings before this Court. Unfortunately, both the notices came back with the endorseme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o file an appeal - and there is no reason why he should not have filed the appeal earlier-, we are satisfied that the Board had gone wrong in treating the appeal as barred by time. The order, on the other hand, is based on erroneous assumption. This appeal has to succeed so far as Board s order, dismissing Kashmira Singh s appeal as time-barred, is concerned." 6. Shri K.K. Jha, the learned SDR, in support of his arguments has cited a decision of the Tribunal in the case of Bharat Nandlal Kalyani v. Collector of Customs (Prev.), reported in 1988 (36) E.L.T. 645 (Tribunal). The facts and cir- cumstances of that case are different and as such the ratio of the decision is not applicable to the facts and circumstances of this case. For proper appreciation of the legal position, Sec. 153 of the Customs Act 1962 is reproduced below :- Section 153. Service of order, decision, etc.- Any order or decision passed or any summons or notice issued under this Act, shall be served - (a) by tendering the order, decision, summons or notice or sending it by registered post to the person for whom it is intended or to his agent; or (b) if the order, decision, summons or notice cannot be served ..... X X X X Extracts X X X X X X X X Extracts X X X X
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