ORDER
K.C. Mamgain, Member (T)
1. When the stay application came up for hearing, Revenue objected that the appeal has been filed after three months from the date of communication and it is time bar.
2. The applicants claimed that they received the order-in-original only on 15-4-2005 and they have accordingly filed the appeal in time i.e. within the period of three months. Thus, the appeal is not time bar. In support of their claim the applicant referred to letter dated 16-4-2005 written by them to the Chief Commissioner, New Customs House, New Delhi wherein they have mentioned that they have not received the order-in-original against which demand has been raised. They also requested the Superintendent adjudication under their letter dated 28th June, 2005 intimating that they have not received the adjudication order through mail and requested to provide despatch details. Affidavit was filed by Shri K.K. Khosla, Director of the applicant concerned that they have collected the photocopy of the impugned order-in-original on 15-4-2005 because of the receipt of recovery notice dated 7-4-2005.
3. It was argued by Revenue that the appeal is time bar as the adjudication order was despatched to the applicant through speed post No. SPEE249004480IN on 6-7-2004 and the same has not been received back as per records of their office. Affidavit to this affect was filed by the Assistant Commissioner. It was also stated that the order has been despatched vide despatch register entry No. 9308-13 dated 6-7-2004 and the order has been displayed on the same day on notice board. It was argued that the Supreme court in case of Bharat Nandlal Kalyani v. Collector of Customs (Prev.) – 1988 (36) E.L.T. 645 (T) had confirmed the order of the appellate Tribunal where the Tribunal has held that if notice is served by Regd. Post it will be treated as served. Reliance was also placed on the Madras High Court decision in the case of P. Bhoormal Tirupati v. Additional Collector of Customs, Madras – 2000 (126) E.L.T. 65 where in para 3 it is held that “Section 153 of the Act states that any order or decision passed or any summons or notice issued under the Customs Act, shall be served (a) by tendering the order, decision, summons or notice and Sub-section (b) of Section 153 need not be referred to as it does not arise in this case. A notice had been sent by registered post duly addressed to the appellant. The Section requires that notice shall be served by sending it by registered post to the person for whom it is intended This section does not require that effective service should be effected by the appellant receiving it”. It was therefore pleaded that in view of this decision since order-in-original was sent to the applicants on 6-7-2004 by speed post and it has not been returned back un-served, it has to be treated as served on the applicant.
4. The applicant relying on the decision of the Gujarat High Court in the case of Rajshree Dyeing & Printing Mills Pvt. Ltd. v. Union of India reported as pleaded that in the said decision the Hon’ble High Court has held that “averments made by the petitioner regarding non service of order of Commissioner (Appeals), have remained uncontroverted. Reliance on behalf of the respondents on provisions of Section 37C of the Central Excise Act, 1944 are besides the point inasmuch as the said provision also requires that the order must be served by registered post with acknowledgement due. The respondent authorities have failed to show by tendering any evidence on record that in fact the order has been served as in absence of the acknowledgement receipt in possession of the respondent authorities, the certificate issued by the postal authorities remains undisputed”.
5. We have considered the submissions of both the sides. We find that in this case the despatch of the order by speed post has been established by the Revenue. However, the service of the order on the applicant has not been established either in the form of any acknowledgement from appellant for having received the order or any correspondence from the postal authorities that the letter has been served. Under Section 129A(3) of the Customs Act every appeal is required to be filed within 3 months from the date on which the order to be appealed against his communicated. Unless the applicant received the order or it is communicated to them, they cannot file the appeal. Their letter dated 16th April, 2005 shows that they have not received the impugned order. Therefore, it cannot be stated that the order was served on the appellant when the date of service cannot be ascertained, Merely sending the letter by speed post without obtaining dated acknowledgement of receipt cannot be sufficient to ascertain last date for filing the appeal. “Revenue have contended that in case of Amrul Mahalder v. CC (Prev.) Kolkata – has taken a view that when the show cause notice is sent by registered post and it has not come back then the appellants are required to produce evidence that they have not received the impugned order. In the present case neither the Revenue has establish that the show cause notice has been served on the applicant nor the applicant has produce any evidence that they have not received the impugned order except filing an affidavit that they have not received the impugned order. We also find that the Tribunal has taken a view that when notice or order is sent by registered post and it has not been received back then it should be treated as served. Hon’ble Madras High Court has also taken a similar view in the case of P. Bhoormal Tirupati v. Additional Collector of Customs, Madras. Revenue also informed that order was pasted on notice board of the office of Commissioner on 6-7-04 itself simultaneously with postal despatch of the order. Under Section 153(b) of the Customs Act it amounts to service on appellants. However Hon’ble Gujarat High Court has taken a view that service should be established by acknowledgement receipt.
6. Since different views has been expressed by the different authorities on the nature of service of an order and on the construction of Section 153(a) and (b) of the Customs Act. The matters requires consideration by Larger Bench for resolving the two questions.
(i) Whether despatch of the adjudication order by speed post amounts to a valid service under Section 153(a) of the Customs Act, 1962 in absence of proof of actual delivery of the speed post?
(ii) Whether simultaneous affixing of the order on the notice board while despatching it by speed post is sufficient compliance of Section 153(b) of the Customs Act?
(Pronounced and dictated in the open Court on 16-1-2006)
