ORDER
K. Raviraja Pandian, J.
1. The above writ petitions are filed for issuance of a writ of certiorarified mandamus to call for the entire records from the first respondent in so far as it relates to his orders in Appeals in his proceedings No. C3/735/0/2006-AIR-C-Cus 923/06 and No. C3/736/0/2006-AIR-C-Cus 924/06 dated 18.12.2006 respectively and quash the said orders and direct the respondents to re-assess the Bill of entry Nos.214385 and 281949 dated 23.8.2006 respectively giving benefit of Notification No. 6/06 dated 1.3.2006 and consequently grant refund of the Counter Veiling Duty (CVD) and cess on Counter Veiling Duty (CVD) collected illegally and without authority of law with interest at 15% per annum from the date of payment .
2. The petitioner company imported 5250 numbers of Digital Video Disc described as ” Project Gotham Racing 3 x box English India Pal DVD” and 1000 numbers of Digital Video Disc described as “Games Ox Box 360 English India P-RSP- item ” vide Bill of Entry Nos. 214385 and 281949 dated 23.8.2006 from M/s.Micro Soft Regional Sales, Singapore. The goods were classified under CTH 85249999 and falls under chapter heading 8524 exempted from the levy of counter veiling duty vide Notification No. 6/2006 dated 1.3.2006. The goods were assessed basic duty at 12.5%, 16% counter veiling duty, 2% cess, 2% Education Cess and 4% ACD on merits without applying the said notification and giving benefit of the said notification to the petitioner . The petitioner paid duty on 24.8.2006 and were awaiting speaking orders regarding assessment of duty. It is the case of the petitioner that on 27.8.2006 the petitioner realised that by mistake counter veiling duty has been levied, which they are not bound to pay. The petitioner, thereafter filed appeals on 22.11.2006 before the first respondent against the assessment orders claiming benefit of the notification No. 6/2006 dated 1.3.2006 and for refund of the excess duty collected without authority of law. That appeals have been rejected on the ground that the appeals have been filed belatedly by one day. According to the petitioner from the date of knowledge, the appeals have been filed well within the period of limitation. This rejection of the appeals by the reason of barred by limitation is put in issue before this Court.
3. I heard the learned Counsel for the petitioner as well as the learned Additional Solicitor General.
4. Section 128 of the Customs Act provides that any person aggrieved by any decision or order passed under this Act by an officer of Customs lower in rank than a Commissioner of Customs may appeal to the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order: provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.
5. It is the contention of the learned Additional Solicitor General that even the extended period has been offered the appeals were filed one day belatedly. The authorities under the Act can only act as per the statutory provisions and they have no power to extend the period of delayed filing even for one day or two days.
6. However, the moot point in this case is that the orders passed, which are impugned before the appellate authority have not been communicated to the petitioner . But in the absence of communication of the order, the moot question is that what is the date from which the limitation has to be reckoned. The service of orders and notices under the Customs Act has to be done as per Section 153 of the Customs Act, which provides that any order or decision passed or any summons or notice issued under the Act shall be served (a) by tendering the order, decision, summons or notice or sending it by registered post to the person for whom it is intended or to his agent; or (b) if the order, decision, summons or notice cannot be served in the manner provided in Clause (a) by affixing it on the notice board of the customs house.
7. In this case none of the above procedures has been followed. It is curious to note that the reason given by the appellate authority is that “notice” means “bringing it to a person’s knowledge”. The legal position accepted by law is that a person having constructive knowledge of a matter cannot be allowed to take advantage of his own negligence. The date of communication in the circumstances stated above will be when the decision comes to be made, pronounced or published in a manner that the parties affected by it have a reasonable opportunity of knowing what it contains.
8. This reason given by the authorities can only be regarded as extraordinary reason not supported by any statutory provisions which statute requires. The service of notice has to be done in the manner as prescribed in the statutory provision. Hence, in the absence of any communication of the orders, as required in the statutory provisions, the reasoning given by the appellate authority about the knowledge that too constructive knowledge of the petitioner cannot be legally accepted. If in this electronic age, the assessment and other things are allowed to be done by computing the assessment and other things electronically and if the respondent wants to take advantage of the same, they will have to first make suitable amendment in the statutory provisions so as to avoid this sort of complication in future. Hence, the orders impugned in both the writ petitions are set aside and the appellate authority is directed to entertain the appeals and proceed further as expeditiously as possible in accordance with law.
9. With these observations, the writ petitions are allowed. Consequently, the connected M.Ps are closed. No costs.