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M/s Shyam Ferro Alloys Ltd. Versus The Assistant Commissioner of Customs (APPg) And 2 Others

2016 (8) TMI 927 - ANDHRA PRADESH HIGH COURT

Condonation of delay - validity of delivery of order by speed post – authorized mode of service – Whether the service of a copy of the order by Speed Post, would constitute valid service under Section 153(a) of the Customs Act, 1962, or not? – Held that: - a person who seeks to send an article by Speed Post, does the same thing as a person who seeks to register an article does. But the transmission of the article is to be on a fast track in speed post services. There is also a tracking system pr .....

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nts : Sri M.V.J.K. Kumar, Senior Standing Counsel JUDGMENT This appeal by the assessee under Section 130 of the Customs Act, 1962, raises the following substantial questions of law: (1) Whether the impugned order failed to see the fact that speed post is not one of the authorized mode of services u/S.153 and thus the impugned order is a nullity? (2) Whether proper service of order under Section 153 of the Customs Act is condition precedent for order to be considered a valid order? (3) Whether th .....

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natural justice, inasmuch as the same suffers from the vice of pre- determination? 2. Heard Mr. Mohd. Shafiq, representing Sri T.Vinod Kumar, learned counsel for the appellant and Sri M.V.J.K. Kumar, learned Senior Standing Counsel for the respondents. 3. The appellant imported about 7480 metric tonnes of Manganese Ore from Australia under a Bill of Entry dated 10-10-2011 through Visakhapatnam Port. The material was provisionally assessed under Section 18(1) of the Customs Act, 1962. The appella .....

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appellant was a Manganese Concentrate and not Manganese Ore . In other words, the Adjudicating Authority took a stand that the material imported was not covered by the exemption notification. 5. The appellant filed their objections to the show cause notice, on 22-8-2012. It appears that after considering the objections, an Order-in-Original was passed on 22-12-2012. It appears that the same was also sent by Speed Post and the same was received by the appellant on 25-12-2012. 6. However, claimin .....

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STAT), South Zonal Bench, Bangalore. The Tribunal dismissed the appeal on the ground that the Commissioner (Appeals) had no power to condone the delay beyond 30 days and that the service of the copy of the Order- in-Original, by speed post was a valid mode of service under Section 153 of the Customs Act, 1962. Therefore, the appellant is before us. 7. Despite the fact that the appellant has raised about five questions of law, which we have extracted above, the only question of law that arises fo .....

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Commissioner of Customs; (b) if the order, decision, summons of notice cannot be served in the manner provided in clause (a), by affixing it on the notice board of the customs house. 9. It appears that four different High Courts have taken the view that so long as the words Speed Post are not used in Section 153(a) of the Customs Act, 1962, when a similar enactment uses the expression Speed Post under Section 37(C) of the Central Excise Act, 1944, the service of any notice or order through Spee .....

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ly about two different methods of service, namely, (1) registered post and (2) such courier as may be approved by the Commissioner of Customs. 12. Therefore, on the basis of the difference in the language employed between Section 37(C)(1)(a) of the Central Excise Act, 1944 and Section 153(a) of the Customs Act, 1962, a learned Judge of Allahabad High Court held in SUPER HOUSE LTD. v. UNION OF [2015 (322) E.L.T. 63 (All.)] INDIA that there was a failure on the part of the Department to comply wit .....

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ilar view in AMIDEV AGRO CARE PVT. LTD. v. UNION OF [2012 (279) E.L.T. 353 (Bom.)] INDIA , where they distinguished a judgment of the Punjab and Haryana High Court in Commissioner of Central Excise v. Mohan Bottling Company (P) Ltd. [2010 (255) E.L.T. 321 (P&H)], which was a case that arose under Section 37(C) of the Central Excise Act, 1944. 13. Another Bench of the Bombay High Court, in NEW DRUG & [2015 (325) E.L.T. 313 (Bom.)] CHEMICAL CO. v. UNION OF INDIA , followed the ratio laid d .....

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e methods of service and that the object of sending the post by registered post is to keep a record. The same object is served by sending an article by speed post through the same agency. Therefore, the Division Bench of the Allahabad High Court struck a different note in the said decision. 14. The learned Senior Standing Counsel for the Department brought to our notice, a decision of the High Court of Orissa in JAY BALAJI JYOTI STEELS LTD. v. CESTAT, KOLKATA [2015 (37) S.T.R. 673 (Ori.)] , wher .....

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We have carefully considered every one of the decisions relied on by the learned counsel for the appellant. In the decision of the learned single Judge of the Allahabad High Court in SUPER HOUSE LTD. (1 supra), there is no discussion as to how the speed post is different from a registered post. In any case, the decision of the Division Bench of the Allahabad High Court, in MIRZAPUR ELECTRICAL INDUSTRIES LTD. (6 supra) should be taken to have overruled impliedly, decision of the single Judge in .....

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aving been filed to support delivery. Therefore, the decision rendered by the Madras High Court, appears to have turned partly on facts and partly on law and hence it cannot be taken to be an authoritative pronouncement of the law on the point. 17. AMIDEV AGRO CARE PVT. LTD. (3 supra), which is a decision of the Bombay High Court, arose under Section 37(C) of the Central Excise Act, 1944. In that case, the provisions of Section 37(C) (1)(a) did not contain the words Speed Post before the amendme .....

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ra) and hence it cannot be accepted for the very same reason as we have stated in respect of AMIDEV AGRO CARE PVT. LTD. (3 supra). 19. Similarly, the decision of the Punjab and Haryana High Court in BEST DYEING (5 supra) cannot go to the rescue of the appellant inasmuch as it arose under Section 35(C) of the Central Excise Act, 1944. Since Section 37(C) contained a different tune than the one found in Section 35(C), the Punjab and Haryana High Court took the view that it did in BEST DYEING (5 su .....

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