TMI Blog2006 (5) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... peal is considered on merit by the first respondent the petitioner will get a favourable decision and on that basis submitted that the appeal may be remitted back to the first respondent to consider the same on merits. But the said contention of the learned counsel for the petitioner could not be countenanced as the appeal had been filed by the petitioner with the delay of 272 days, which is beyond the condonable period of 30 days provided in Section 128(1) of the Act. It could not also be countenanced for the reason that the proviso to Section 128(1) of the Act specifically stipulates that the Appellate Authority can condone the delay up to 30 days only. Therefore, unless the statute makes provision for condonation of delay or extension of time on cause being shown or otherwise, the Appellate Authority functioning within the framework of the statute cannot relax the time limits prescribed thereunder. Therefore, the impugned order of the first respondent is perfectly valid and legal and the same has to be sustained. Thus, the above writ petition fails and accordingly is dismissed. No costs. Consequently, the connected WPMP and WVMP are closed. - HON'BLE K. MOHAN RAM, J. For t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iginal should be deemed to have been served on the petitioner on 12-5-2004 and 13-5-2004. The Appellate Authority has power to entertain an appeal filed within a period of 90 days from the date of communication of orders passed by the Original Authority. Since the appeal was filed beyond the statutory period the same was dismissed and under Section 128A of the Act the Appellate Authority is empowered to condone the delay of 30 days alone and not beyond that. (ii) It is further contended that the petitioner is having an alternative remedy by way of an appeal to the Tribunal, but without exhausting the statutory remedy the above writ petition has been filed and hence the same is liable to be dismissed. The contention of the petitioner that the appeal had been filed within the condonable period of 30 days is not admitted in the counter. 4. Heard both. 5. The learned counsel for the petitioner reiterated the contentions raised in the writ petition and submitted that the order-in-original was not actually served on the petitioner and unless there is an actual service of the order, it could not be said that the period of limitation prescribed under Section 128A of the Act started to run. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d interim order had been passed in favour of the petitioner, in the considered view of this Court, it may not be equitable to reject the writ petition on the ground of availability of alternative remedy by way of an appeal to the Tribunal. Therefore, the contention of the learned ACGSC regarding the maintainability of the writ petition is not acceptable. 9. Now this Court has to consider whether the contention of the learned counsel for the petitioner is acceptable and the law laid down in the judgments relied upon by him are applicable to the facts of this case. (i) In A.I.R. 1966 S.C. 330, the Honourable Supreme Court of India while considering Section 27(3) of the Mysore Town Municipalities Act (22 of 1951) observed as follows : (11) Giving of anything as ordinarily understood in the English language is not complete unless it has reached the hands of the person to whom it has to be given, in the eye of law however giving is complete in many matters where it has been offered to a person but not accepted by him. Tendering of a notice is in law therefore giving of a notice even though the person to whom it is tendered refuses to accept it. We can find however no authority or princi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Honourable Supreme Court of India observed as follows: 1. Though the notice was sent to the respondent on 29-9-1993, it came back with an endorsement Not present. Hence return to sender . It would be obvious that the respondent is avoiding service. Notice must, therefore, be deemed to have been served on the respondent. Relying on the above observation of the Honourable Supreme Court of India the learned ACGSC submitted that in the present case the notice sent by Registered Post was returned with the postal endorsements absent and intimation delivered and hence it is obvious that the petitioner was avoiding service. (ii) In 1999 (3) C.T.C. 358, in paragraph 25, it is observed as follows: 25. Thus, when a notice is returned by the sendee as unclaimed such date would be the commencing date in reckoning the period of 15 days contemplated in Clause (d) to the proviso of Section 138 of the Act. Of course such reckoning would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address. In the present case the accused did not even attempt to discharge the burden to rebut the aforesaid presumption . Relying on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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, the service shall be deemed to be effected by properly addressing pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. The normal presumption, unless the contrary is proved, is that the service shall be deemed to have been properly effected when a letter is properly addressed, pre-paid and posted by registered post. That the notice was sent to proper address, pre-paid and posted by registered post is not under dispute. No other attempt has been made to prove the contrary. The endorsement 'left' is not sufficient to prove the contrary. Apart from it, a reading of the Section indicates that the proof to the contrary can only b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 72 days, over and above the condonable period of 30 days, the delay could not be condoned by the first respondent acting under Section 128 of the Act. 15. As per Section 128 of the Act, an appeal by a person may be filed to the Commissioner (Appeals) within 60 days from the date of communication to him of any decision or order passed under the Act by an officer of Customs lower in rank than a Commissioner of Customs. The period of limitation prescribed under the Section commences from the date of communication of the decision or order and Section 128 does not say that the period of limitation commences only from the date of actual service of the decision or order. 16. The learned counsel for the petitioner submitted that considering the fact that similar issue that arises for consideration in the Appeal filed by the petitioner is already decided in favour of the importers in other connected appeals and if the appeal is considered on merit by the first respondent the petitioner will get a favourable decision and on that basis submitted that the appeal may be remitted back to the first respondent to consider the same on merits. But the said contention of the learned counsel for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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