MARGRA INDUSTRIES LTD. Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(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.