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TMI Blog2016 (2) TMI 946X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute that the Show Cause notice dated 5.4.2001, or the personal hearing intimations or the impugned Order-in-Original dt. 31.1.2002 could not be served or brought to the knowledge of the Appellant despite efforts made by the department. The department found that the appellant and his son had left the premises mentioned in the Show Cause Notice or the Order-in-Original and thus the same could not be served by any regular mode. It is also not in doubt that the appellant was abroad in the entire period from issuance of show cause notice till passing of the impugned Order, and the said fact has been evidenced by his passport issued on 2.4.2001 in London. 3. It was contended by the Learned Senior Advocate appearing on behalf of the applican ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng evidence of affixation thereof on notice board. Even in the context of section 153, there is no reference in the said report to affixing the impugned Order on the Notice Board of the Customs House. He informed that on an earlier occasion on pointing out these facts, the earlier Bench in which one of the Members delivered the said Order dated 21.12.2012, directed vide Orders dated 1012.2015 and 303.2015, to produce evidence of service and displaying' the Order-in-Original etc on Notice Board to support the said oral submission made by the Representative in the case of Applicant's son. He also pointed out that even in the impugned Order-in-Original, it not the case of the department that either the SCN or the hearing memo was serve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deserves to be preferred when pitted against technical considerations, and that there is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. He also submitted that despite the decision in the case of his son was passed in the same case, the same was not only on erroneous C) consideration but also distinguishable on facts. He submitted that excellent prima facie case was made out for condoning the delay, and to hear the appeal on merits. He submitted that no prejudice would be caused to the Revenue if the appellant is granted an opportunity to place his case against the impugned Order and to make submissions on merits of the appeal. 5. The Learned departmental representat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sonal hearing intimation or the impugned Order, by any mode including evidence of affixation thereof on notice board. Even in the context of section 153, there was no reference in the said report to affixing the impugned Order on the Notice Board of the Customs House. Despite repeated opportunities, even now, only an office note could be produced to show only intent of displaying the Order-in-Original on Notice Board. One of the Brother Me-cars, who passed the said Order in the case of Applicant's son, himself directed the department to produce proof of service on pointing cut these facts. We are thus convinced that the fact situation in the case of the Applicant is different from the case of Shri Nitesh Sadarangani, and as agreed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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