TMI Blog2004 (6) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner of Customs stating that the Bonds were pending for cancellation and requested that copies of bonds and other related documents be provided to their clearing agent; that they were forwarded copies of the Orders dated 31-12-1999 by their clearing agent which were received by him on their behalf on 22-1-2000; that by these orders dated 31-12-1999 the Deputy Commissioner purported to confirm the demands of duty issued under Section 28(1)/142 read with Section 18 of the Customs Act on the ground that the Appellants had not discharged their obligation to submit the Special Import Licence in respect of the goods imported by them; that they filed two appeals before the Commissioner (Appeals) who, under the impugned Order have rejected their appeals holding that the Order-in-Original which were despatched by speed post and acknowledged by the Postal Authorities, were deemed to have been served on the Appellants on 3-1-2000 in terms of Section 153 of the Customs Act and accordingly the appeals filed by them were barred by the time-limit stipulated in Section 128 of the Customs Act. 3.1 The learned Advocate, further, submitted that the Orders dated 31-12-1999 were received by their cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on conjectures and surmises; that he erred in coming to a finding that delivery through Speed Post is deemed to be proper delivery when not returned back undelivered; that Section 153 of the Customs Act only provides for the mode service of an order while Section 128 provides that appeal has to be preferred by an aggrieved person within 3 months from the date of communication; that Section 153 refers to the discharge of the obligation by the authorities and Section 128 refers to the second leg namely the receipt of order by the party concerned; that the obligation to serve contemplated by Section 153 would stand fulfilled if the ingredients of Section 153 are satisfied; that but that does not mean that the Order has been communicated; that the Appellants received the orders only in November 2000 when their Clearing Agent forwarded the same to them. He also relied upon the decision in the case of Tele Tube Electronics Ltd. v. Delhi Sales Tax Appellate Tribunal, 2003 (132) S.T.C. 424 wherein the Delhi High Court accepted the submissions, made by the petitioner to the effect that once the petitioner discharged its initial burden by denying the receipt of copy of the Order by register ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the postal department on the same date, the Appellate Tribunal has considered the same to be proper service in terms of Section 153 of the Customs Act. The learned SDR emphasised that as the orders sent by speed post were not received back from postal authorities, the presumption is that the orders were served on the Appellants; that the affidavit given by the Appellants has been rebutted by Revenue by furnishing the Affidavit of the Deputy Commissioner, Customs. 5.2 The learned DR also distinguished all the decisions relied upon by the learned Advocate for the Appellants. He submitted that the judgment in Green View Radio Service is not applicable as the affidavits of all their employees had not been submitted; that the Appellants appear not to maintain any Register regarding incoming letters; that the Affidavit of the Vice President is silent about any such Register being maintained by them; that the Orders were sent to the proper address and mere denial of non-receipt cannot be treated as a rebuttal of the presumption of service; that in Tele Tube Electronics Ltd., there was a specific Rule i.e. sub-rule (2) of Rule 46 of the Delhi Sales Tax Rules, 1975 which provided that wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7) E.L.T. 497 (S.C.) = 2003 (58) RLT 479 (SC) that if the appeal is dismissed by the Commissioner (Appeals) on account of non-making of pre-deposit, the Tribunal cannot consider the case on merit; that the Tribunal has also held in Raymon Shoe Co. v. CCE, Kanpur - 2003 (151) E.L.T. 551 (T) that merits of the case cannot be considered by the Tribunal where appeal has been dismissed by the Commissioner as time-barred. 7. We have considered the submissions of both the sides. As per the provisions of Section 128 of the Customs Act, any person aggrieved by any decision or order has to file an appeal to the Commissioner (Appeals) "within three months from the date of communication to him of such decision or order." The contention of the Appellants is that both the Order-in-Original dated 31-12-1999 were received by them only on 22-11-2000 from their Clearing Agent and they had filed appeals on 22-1-2001 which is within the period of three months from the date of communication of the Order. On the other hand the contention of the Revenue is that both the orders were despatched to the Appellants by Speed Post on 3-1-2000 and have brought on record their Despatch Register and Receipt issu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
