UNIVERSAL SERVICE Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) AFTER examining the records and hearing both sides, we are of the view that the appeal itself requires to be disposed of finally at this stage. Accordingly, after dispensing with predeposit, we take up the appeal.

(2.) THE appellants had imported portable Emergency Lamps of Chinese origin and filed a Bill of Entry dated 17.12.2002 for clearance of the goods. The goods were provisionally assessed to duty and subsequently cleared to the assessee on payment of duty so assessed. The provisional assessment was finalised in Order -in -Original No. 2092/2004 passed by the Deputy Commissioner of Customs (GR.7B), wherein there was enhancement of assessable value of the goods and consequential demand of differential duty. Against the Deputy Commissioner's order, the assessee filed an appeal with the Commissioner (Appeals) on 02.08.2005, which was dismissed as time -barred. Hence the present appeal.

(3.) AFTER examining the records and hearing both sides, we note that no application for condonation of delay had been filed with the Commissioner (Appeals) as the appellants felt that there was no delay in filing the appeal. They claimed that a copy of the Order -in -Original was received only on 07.06.2005 and, therefore, the appeal, filed on 02.08.2005, was within the period of limitation prescribed under Section 128 of the Customs Act. Learned Commissioner (Appeals) found that the Order -in -Original had been despatched to the party by Registered Post on 11.05.2004, that another copy of the order had been separately served on their CHA on 08.05.2004 and that a copy of the order was displayed on the notice board of the Customs House on 14.02.2005 in terms of Section 153 of the Customs Act. On this basis, it was held that the appeal filed on 02.08.2005 was beyond even the condonable period of delay under Section 128 ibid. Learned Counsel for the appellants submits that no copy of the Order -in -Original which is said to have been despatched on 11.05.2004 was received by the party and that their CHA was not authorised to receive the order either. As regards display of the order on the Customs House notice board, learned Counsel submits that this is a matter to be verified. Learned SDR reiterates the findings of the Commissioner (Appeals). He has relied on the Delhi High Court's judgment in Delta Impex v. Commissioner of Customs, New Delhi 2004 (173) E.L.T. 449 (Del.), wherein an order of appellate Commissioner of Customs, similar to the one impugned in the present appeal, was sustained by the Hon'ble High Court.