TMI Blog2008 (6) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... l dismissing appeal of the Appellant, and to restore its Appeal in Appeal Case No. EDM-157/05, for decision on merit. An Appeal was filed by the Applicant/Appellant on 16-3-05 against Order dated 25-1-05 passed by the ld. Commissioner (Appeals-IV) of Central Excise, Kolkata dismissing its appeal being barred by limitation, without condoning delay in filing such appeal. 2.1 Ld. First Appellate Authority, getting confirmation from the ld. Additional Commissioner, Central Excise, Siliguri Division vide letters No. V(15)15/ADJ/CE/SLG/03/863 dated 17-1-05 and No. 1140 dated 24-1-05, showing that the order-in-original was sent to the Appellant/Applicant by Speed Post on 18-3-04 and the same was not returned back by postal authority with any remark as undelivered , passed the impugned order holding that delay in filing appeal by Appellant before him on 3-1-05 was not condonable. While above confirmation was received by the ld. Commissioner, he also received Xerox Copy of the Speed Post receipt towards proof of dispatch made on 18-3-04. 2.2 The Appellant/Applicant filed first Appeal on 3-1-05 against order of adjudication dated 31-1-2004 indicating that the impugned order was received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed/despatched on 18-3-04 by Speed Post vide Receipts ED501666814IN, ED501666828IN, ED501666831IN and ED501666845IN issued by Postal Authority. Photocopies of the Receipts were also annexed to the reply of Revenue. Revenue did not dispute issue of attested copy of order of adjudication to Appellant/Applicant on 20-12-04. It was also informed that factual position of dispatch of the order-in-original and no return thereof as un-delivered was informed to the ld. Commissioner (Appeals). 4. The ld. Counsel, Shri S.K. Roychowdhury, appearing for Appellant/Applicant submitted that the Appellant/Applicant had not at all received the order-in-original said to have been dispatched on 18-3-04 under different Speed Post Receipts claimed by Revenue. For such reason, on 12-3-08, the Appellant/Applicant requested Postal Authority to confirm whether an envelope under the Speed Post consignment No. ED501666814IN was actually sent to the Appellant/Applicant, and if so, whether acknowledgement was sent back to Central Excise Authorities. Again on 1-4-08, a reminder was issued to the said authority by the Appellant for confirmation. But the postal authority in response to the request of Appellant/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng or does it also mean being received ? (4) By using the expression shall be served in Section 153 of the Customs Act, has or has not the legislature intended that every notice issued under the Customs Act should be actually served, that is given , that is be received by the person for whom it is meant or to whom it has been issued? (5) Does the expression sending by registered post as used in Clause (a) of Section 153 of the Act only indicate the manner of issuance of the notice or does it also prescribe, by implicity obliterating the expression shall be served that there is no need to ensure that the notice has actually been received by the person concerned? (6) Does the combined reading of Sections 110(2), Section 124(a) and Section 153 of the Customs Act mean that the responsibility of a person issuing notice rest by merely sending it by registered post and that the person whose goods have been seized under Section 110 does not have any right of actually receiving the notice before the expiry of 6 months so as to invoke the benefit of release of goods conferred upon him under Clause (2) of Section 110 of the Act? The reason of reference to the La ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re print of 1988 at page 1949). Therefore, in legal parlance service is giving. Under Section 153 of the Act, service is either by personal delivery (tender) or by putting in into transmission by registered post in case both are possible. Thus, the legal conclusion would be that service of a notice will be complete either by tendering or by sending the same by registered post, since the legislature has equated both the situations by using the word or . In the event of the notice is tendered, the date on which the same was tendered should be taken as the date of giving of notice, but if the other option is exercised and the notice is sent by registered post the date of sending the notice should be the date of giving of notice as contemplated by Section 110(2) of the Act. Any other construction will render the legislative intent of equating tender with sending by registered post office. (3) Another Division Bench in the case of India Sales International v. Collector of Customs Ors. reported in 100 C.W.N. 429, followed the Division Bench decision in Union of India v. Kanti Tarafdar - 1997 (91) E.L.T. 51 (Cal.) and held :- In terms of the aforementioned provisions it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tarafdar - 1997 (91) E.L.T. 51 (Cal) and also Tirupati Trading Corporation - 1998 (104) E.L.T. 618 (Cal.). Also, the Hon ble High Court of Madras as early as 22-8-1973 dealt similar issue in the case of P. Bhoormal Tirupati v. Additional Collector of Customs, Madras - 2000 (126) E.L.T. 65 (Mad.) holding as under : Section 153 of the Act states that any order or decision passed or any summons or notice issued under the Customs 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; sub-section (b) of Section 153 need not be referred to as it does not arise in this case. A notice had been sent by registered post duly addressed to the Appellant. The section requires that notice shall be served by sending it by registered post to the person for whom it is intended. The section does not require that effective service should be effected by the appellant receiving it. This position is made clear by reference to section 27 of the General Clauses Act which states that where any Central Act requires any document to be served by post, then, unless a different intention appeals, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o far as issue No. (i) is concerned, the decision was that dispatch of adjudication order by speed post/registered post would not amount to a valid service in the absence of proof of actual delivery by speed post. So far as issue No. (ii) is concerned, the decision was that the Sections in themselves indicate that there cannot be any simultaneous affixing of the order on the notice board and the affixing of the order has to be considered after failure of the first two modes. In the aforesaid decision, in absence of proof of actually delivery by Speed Post, the Tribunal came to the conclusion that there was no valid service. 6.6 In the present case in hand, acknowledgement produced by Revenue proves that order of adjudication was sent by Speed Post and the order was deemed to have been served under sub-section (2) of Section 37C on the date on which the order-in-original was delivered by Speed Post. The deeming provision of law supported by evidence of dispatch does not help the Appellant/Applicant to succeed when Larger Bench decision of the Hon ble High Court of Calcutta as aforesaid being a decision of a higher Court and has laid down the law, that holds the field. Accordingly, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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