{"id":125654,"date":"1995-02-10T00:00:00","date_gmt":"1995-02-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/goldn-sand-vs-collector-of-customs-on-10-february-1995"},"modified":"2018-03-12T05:28:28","modified_gmt":"2018-03-11T23:58:28","slug":"goldn-sand-vs-collector-of-customs-on-10-february-1995","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/goldn-sand-vs-collector-of-customs-on-10-february-1995","title":{"rendered":"Gold’N Sand vs Collector Of Customs on 10 February, 1995"},"content":{"rendered":"
Customs, Excise and Gold Tribunal – Delhi<\/div>\n
Gold’N Sand vs Collector Of Customs on 10 February, 1995<\/div>\n
Equivalent citations: 1995 (77) ELT 383 Tri Del<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 Harish Chander, President  <\/p>\n
1. M\/s. Gold’n Sand and M\/s. Sathya Deep Exports have filed the abovecaptioned appeals being aggrieved from the order passed by the Collector of Customs, Customs House, Kandla. The said appeals were received on 22nd August, 1994. Applications for condonation of delay duly supported with affidavits have been filed. Since the issue involved is identical, the same are being disposed of by this common order. Shri L.P. Asthana, learned advocate has appeared on behalf of the appellants. He pleaded that in the present matters the show cause notice was issued on 24-5-1993 and was received at Delhi address and there was no service though a mention was there on the show cause notice and the advocate had sent the reply on 11-8-1993 from Delhi address giving his address and the appellants had waived the personal hearing. The order was passed on 15-3-1994 and issued on 25-3-1994. He further stated that the Bench had ordered the production of the original records and he has been told by the learned SDR that original records are with him. He pleaded that Section 153 of the Customs Act, 1962 lays down the procedure and mode of service and notice has to be served in terms of Section 153 and first it has to be sent to the party or his agent and the authority can resort to Section 153 (b) which is the mode by affixture on the notice board of the customs house only in the event of failure of service under Section 153 (a). He pleaded that in the present matter, the order was returned by the postal authorities on the ground “left without leaving address” and it was sent by the Delhi postal authorities on 21\/4\/94 whereas the order for effecting service by affixture is dated 13\/4\/94 which is prior to the return of the papers from Delhi postal authorities and as such service by afixture is illegal and bad in the eyes of law. He pleaded that since the appellants had vacated the premises in the year 1988 and as such there was no question of service at Kandla and this fact is well within the knowledge of the Revenue authorities and in the order it has been mentioned that the factory premises were evicted by the officers of the Kandla Free Trade Zone under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and an inventory of goods lying in stock at the factory premises was taken. In support of his arguments, Shri L.P. Asthana relied on a decision of the Hon’ble Supreme Court in the case of Payed Ashok Kumar Jindal v. Captain Ashok Kumar Jindal,<\/a> reported in 1992 (60) E.L.T. 19 (S.C.) and also the decision of the Tribunal in the case of Surjit Kaur and Two Others, Amritsar v. Collector of Central Excise and Customs, Chandigarh, reported in 1985 (21) E.L.T. 781 (Tribunal). He further pleaded that he had received the order from the Office of the Collector on 7th June, 1994 and had served the same on his client on 1st July, 1994. He further stated that if 7th June, 1994 is taken as the date of service, the appeal was filed on 22nd August, 1994 which is within limitation and as such, there is no delay and the applications for condonation of delay filed by the appellants become infructuous. He pleaded that similar facts are in the case of Sathya Deep Exports. He pleaded for the disposal of the applications for condonation of delay.\n<\/p>\n
2. Shri K.K. Jha, the learned SDR, who has appeared on behalf of the respondent pleaded that the appellants had two addresses, one at Kandla Free Trade Zone and other at Delhi. He pleaded that the order was duly sent at the Kandla Free Trade Zone and on 13-4-1994 it was displayed on the Notice Board in terms of Section 153 (b) of the Customs Act 1962 since the Revenue had failed to serve the same at the Kandla Free Trade Zone address and it was incumbent on the part of the appellants to intimate any change in address from Kandla Free Trade Zone to Delhi and the sending of the letter to the advocate is a courtesy on the part of the Department. Shri K.K. Jha pleaded that there was negligence on the part of the appellants and as such, there was no question of condonation of delay as the appeals were filed after the expiry of limitation. He stated that the postal envelope in the case of Gold’n Sand was a registered letter No. 496, dated 13-4-1994 and perusal of the back of the envelope shows that it was returned by the postal authorities on 21-4-1994 though the postman had visited the premises of the appellants at Delhi address i.e. D-19, Okhla Phase No. 1 on 18th and 19th April, 1994 too. He pleaded that since the service at Kandla Free Trade Zone was before 13th April, 1994 and as such the service by affixture on 13th April, 1994 is a valid service in the eyes of law. He pleaded for rejection of the condonation of delay applications.\n<\/p>\n
3. In reply, Shri L.P. Asthana, learned advocate again reiterated that since the appellants had left the Kandla Free Trade Zone in the year 1988 and as such, there was no question of any service on the appellants at Kandla Free Trade Zone. He pleaded that the show cause notice was received at Delhi and the reply was sent from Delhi. He stated that nobody was living at Kandla and the appellants had waived the personal hearing at Kandla. He pleaded for the disposal of the condonation of delay applications as argued by him.\n<\/p>\n
4. We have heard both the sides and have gone through the facts and circumstances. It is an admitted position that appeals were filed on 22nd August, 1994. The impugned order is dated 15th March, 1994 and was issued on 25th March, 1994. We have perused the order where the service by affixture has been ordered. The order passed by the Assistant Collector of Customs dated 13th April, 1994 is reproduced below: –\n<\/p>\n
“M\/s. Gold’n Sand were established a unit in the Kandla Free Trade Zone for manufacture and export of Brushes etc. Since the unit became inoperative and was lying closed for quite some time, action under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 was initiated and they were evicted by the Estate Officer of the KAFTZ.\n<\/p>\n
2.  During the course of eviction and subsequent scrutiny of the statutory books of account, it is noticed that goods valued Rs. 6,17,893\/- involving customs duty to the tune of Rs. 9,56,192\/- are lying with the unit and therefore they have violated the provisions of Customs Notification No. 77\/80-Cus., dated 17-4-1980 and the bond executed thereunder. Accordingly a Show Cause Notice was issued to the party and the matter was finally decided by the Collector of Customs after considering the reply furnished by the party’s Advocate and the records available. The Collector of Customs, Kandla, vide his Order-in-Original No. KDL\/COLLR\/23\/94, dated 15-3-1994 issued on 25-3-1994 confirmed duty to the tune of Rs. 9,56,192\/- and also imposed a penalty of Rs. 1 lakh. The Order-in-original forwarded to the party at their Zone address has been returned back as no representative of the. unit is available, hance the copy of the same has already been forwarded to their Head Office at Delhi.\n<\/p>\n
3. The Order-in-original is therefore served on the party by affixing it on the Notice Board of the KAFTZ Administration according to the provisions of Sub-section (b) of Section 153 of the Customs Act, 1962.”\n<\/p>\n
5. A perusal of the order passed by the Assistant Collector of Customs dated 13th April, 1994 shows that the service by affixture was ordered and effected on 13th April, 1994 after the Revenue authorities had received back the Order-in-original from Kandla Free Trade Zone. A perusal of this order further shows that the appellants’ unit became inoperative and was lying closed for quite some time and action under Public Premises (Eviction of Unauthorised Occupants) Act, 1971 was initiated and they were evicted by the Estate Officer of the Kandla Free Trade Zone. It is a principle of natural justice that service has to be an effective service. We have perused the original postal envelope in the case of Gold’n Sand which was delivered at Delhi address vide registered letter No. 496, dated 13-4-1994 from the Kandla Free Trade Zone post office and the postman visited the premises of the appellants in Delhi at D-19, Okhla Phase No. 1 on 18-4-1994, 19-4-1994 and finally on 21-4-1994. The postman writes “Left WL Add”. Apparently it means “Left without leaving address”. It was returned by the postal authorities at Delhi on 21-4-1994. The service stamps have been cancelled by the postal stamp dated 13-4-1994 at Kandla. This means that it was sent by the Kandla Postal authorities to Delhi on 13th April, 1994. In any case, it is apparently clear that papers at Delhi were received after 13th April, 1994 whereas the service is dated 13-4-1994. Hon’ble Supreme Court in the case of Payal Ashok Jindal v. Captain Ashok Kumar Jindal,<\/a> reported in 1992 (60) E.L.T. 19 (S.C.) in Para 13 had held as under : –\n<\/p>\n
  “13. In any case – realising the requirements of natural justice – the Family Court, sent two registered notices to the appellant at her Noida address and also at the address given by her in the proceedings before this Court. Unfortunately, both the notices came back with the endorsements that the appellant could not be found on the given addresses.There is no material on the record to reach a conclusion that the appellant refused to receive the notices. There is also nothing on the record to show as to whether the postal authorities made any efforts to deliver the registered letters to any of the appellant’s relations at the given addresses. The courts below are wholly unjustified in holding that the appellant refused to receive the notices and further that the said notices could have been received by any of her relations on the given addresses.”\n<\/p>\n
The Tribunal had occasion to deal a similar situation in the case of Surjit Kaur and Two Others, Amritsar v. Collector of Central Excise and Customs, Chandigarh, reported in 1985 (21) E.L.T. 781 (Tribunal). Para 10 from the said judgment is reproduced below: –\n<\/p>\n
10. The situation that emerges is that Kashmira Singh had no knowledge of adjudication proceedings, much less of adjudication order which was not served on him when sent on his village address but was received back undelivered with clear endorsement that he was not residing in the village but was in Amritsar. It was not served at the Amritsar address for reasons unknown, but which fact is established from the Collector’s report dated 9-11-1984. In face of that, the service by affixation at the village house on 14-5-1979 was a futile exercise and reveals a mechanical approach on behalf of Customs authorities because, when there was a clear report on 26-3-1979 on the registered envelope that Kashmira singh had left residence of village Mal-luwal and shifted to Amritsar, the attempt at service by pasting at the house in village Malluwal was meaningless. No valid service of adjudication order, therefore, can be said to have taken place on the basis of this report on 14-5-1979 on which the Board relied. The Board, we have already discussed, was in error in placing the burden on the appellant Kashmira Singh for want of Service or for drawing an inference adverse to him, on the ground that he had not intimated change of address because he had, at no stage, any opportunity of giving any address. As against that, there was categorical statement by Kashmira Singh that he had acquired knowledge of this adjudication order on 30-5-1980 when he went to the Chandigarh Collectorate for some other hearing. From the fact that he had immediately rushed to file an appeal – and there is no reason why he should not have filed the appeal earlier-, we are satisfied that the Board had gone wrong in treating the appeal as barred by time. The order, on the other hand, is based on erroneous assumption. This appeal has to succeed so far as Board’s order, dismissing Kashmira Singh’s appeal as time-barred, is concerned.”\n<\/p>\n
6. Shri K.K. Jha, the learned SDR, in support of his arguments has cited a decision of the Tribunal in the case of Bharat Nandlal Kalyani v. Collector of Customs (Prev.), reported in 1988 (36) E.L.T. 645 (Tribunal). The facts and circumstances of that case are different and as such the ratio of the decision is not applicable to the facts and circumstances of this case. For proper appreciation of the legal position, Section 153 of the Customs Act 1962 is reproduced below :-\n<\/p>\n
“Section 153. Service of order, decision, etc.- Any order or decision passed or any summons or notice issued under this Act, shall be served –\n<\/p>\n
(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<\/p>\n
(b) if the order, decision, summons or notice cannot be served in the manner provided in clause (a), affixing it on the notice board of the customs house.”\n<\/p>\n
A perusal of Section 153 (a) shows that where any order or decision or any summons or notices have been issued shall be served 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.\n<\/p>\n
7. In the present matter, nobody was living at Kandla, neither the appellants nor their counsel and as such there was no question of tendering the service at Kandla. Alternatively, it was returned by the postal authorities on 13-4-1994 with the remarks “left without leaving address”. This means it was, in any case, received after 21st April, 1994 whereas the affixture order was dated 13th April 1994. A perusal of Sub-section (b) of Section 153 of the Customs Act 1962 shows that if the order, decision, summons or notice cannot be served in the manner provided in clause (a), it has to be affixed on the notice board of the customs house. Thus, service by affixture in this case is invalid service in the eyes of law as Sub-section (b) of Section 153 was invoked without exhausting Sub-section (a). In the present matter the impugned order was also sent to the appellants’ advocate Shri L.P. Asthana on 7th June, 1994 and he had served the same on his clients on 1st July, 1994. If 7th June is deemed to be the date of service, the last day for filing of the appeal was 7th September, 1994 whereas the appeals were presented on 27th August, 1994. Thus, the appeals are within time. During the course of arguments, Shri K.K. Jha, learned SDR stated before us that the facts in the case of Sathya Deep Exports are similar though there is no postal envelope in their file but the same was also despatched on the same date. In these circumstances, we hold that both the appeals were filed within the stipulated period in terms of Provision (3) of Section 129A of the Customs Act, 1962 and the applications for condonation of delay are infructuous. The same are disposed of accordingly.<\/p>\n","protected":false},"excerpt":{"rendered":"
Customs, Excise and Gold Tribunal – Delhi Gold’N Sand vs Collector Of Customs on 10 February, 1995 Equivalent citations: 1995 (77) ELT 383 Tri Del ORDER Harish Chander, President 1. M\/s. Gold’n Sand and M\/s. Sathya Deep Exports have filed the abovecaptioned appeals being aggrieved from the order passed by the Collector of Customs, Customs […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[41,33],"tags":[],"class_list":["post-125654","post","type-post","status-publish","format-standard","hentry","category-customs-excise-and-gold-tribunal-delhi","category-tribunal"],"yoast_head":"\nGold'N Sand vs Collector Of Customs on 10 February, 1995 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/goldn-sand-vs-collector-of-customs-on-10-february-1995\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gold'N Sand vs Collector Of Customs on 10 February, 1995 - 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