TMI Blog2023 (12) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... for the very first time only on 05.05.2022 when copy of the said order was made available to him on request being made whereas on the other hand the impugned order records that the said order was dispatched by speed post vide letter dated 06.07.2018. In the present case, since it was the specific case of the appellant before the Commissioner (Appeals) that the speed post was not delivered to him, hence it was incumbent upon the revenue to bring on record the date of speed post and the acknowledgement of such speed post. However, despite such an specific assertion being made, the impugned order neither records the date on which the speed post was sent/dispatched nor the date of acknowledgment of the speed post. In absence of the date o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y hearing application is allowed. 2. Further, with the consent of both the sides, I proceed to hear the appeal today itself. 3. This appeal is directed against Order-in-Appeal No.148-CUS/APPL/LKO/2023 dated 02/02/2023 passed by Commissioner (Appeals) Customs, Central Excise Service Tax, Lucknow. 4. The facts of the case are that the appellant was earlier running a jewellery shop at in the name and style of M/s. Kamakhya Bullion Center, Ganeshganj, subzi mandi, PS-Katra, District-Mirzapur-U.P. It is the appellant s case that on account of some business transaction, his employee Shri Suresh Kumar was returning by train from Kolkata carrying two gold bars and when the train reached Mughalsarai Junction on 24.04.2017, his employee wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 018 and 03.05.2018. The learned counsel further submits that during the period when the appellant contested criminal proceedings, he was not aware of the Order-in-Original and the said order was also not served on him in the manner known to law, as by that time he had shifted to a new address. The learned counsel further submits that in the meanwhile, covid 19 pandemic struck the entire country and the appellant being the sole bread earner of his family barely managed to earn daily livelihood and therefore could not approach the office of the adjudicating authority to make any enquiry about the show cause notice. It was only in the first week of April 2022, when situation became slightly normal, the appellant approached the office of the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne hand the appellant claims that the Order-in-Original dated 06.07.2018 was communicated to him for the very first time only on 05.05.2022 when copy of the said order was made available to him on request being made whereas on the other hand the impugned order records that the said order was dispatched by speed post vide letter dated 06.07.2018. 9. Since the impugned order records that the order dated 06.07.2018 was dispatched by speed post, hence it is necessary to refer to Section 153 of the Act, relevant part of which is reproduced here: 153 . Modes for service of notice, order, etc. - (1) An order, decision, summons, notice or any other communication under this Act or the rules made thereunder may be served in any of the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds the date on which the speed post was sent/dispatched nor the date of acknowledgment of the speed post. In absence of the date of dispatch by speed post and date of acknowledgement, the revenue has clearly failed to discharge the initial onus and therefore it cannot be said that the order dated 06.07.2018 was communicated to the appellant at any time on or around 06.07.2018. 11. Further, as held by division bench of this Tribunal in Indo Rama Synthetics India Ltd. v. Commissioner of Customs 2020 (371) ELT 621 (Tri-Mum), once the revenue failed to bring on record the proof of service and the order sent by speed post was not delivered back, then the same was required to be delivered by other modes specified under Section 153 or by displ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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