MOHD. OSMAN Vs. COMMISSIONER OF CUSTOMS, HYDERABAD

JUDGEMENT

(1.) THE Commissioner of Customs & Central Excise, Hyderabad passed the Order -in -Original No. 9/2004, dated 27 -2 -2004 confiscating Gold weighing 9915.25 gm, valued at Rs. 45,47,500/ - under Sections 111(m) & (o) of the Customs Act, 1962. Further, two appellants in the present appeals, namely Mohd. Osman and Abdul Rehman were penalized under Section 112(a) of the Customs Act, 1962 by imposing a penalty of Rs. 10 lakhs. Revenue was also pursuing the matter by way of prosecution in the Court of Law. We find that the Order -in -Original was passed on 27 -2 -2004. However, the appellants filed the appeals only in the year 2006. The matter came up before the Tribunal for hearing on 22nd September, 2006. Since there was inordinate delay of 829 days in filing the appeals, the appellants were directed to file COD application along with the affidavit. The learned Departmental Representative was also asked to report proof of service of the Adjudication order by the adjudication section in the Commissionerate office.

(2.) IT is stated by Shri Mohd Osman that he received the Adjudication order sent by Registered Post with Acknowledgement Due on 8 -3 -2006. The appellant, Shri Mohd Osman in his affidavit has stated that he requested for return of 85 foreign marked gold bars seized from him, in his letter addressed to the Commissioner of Customs, Hyderabad. The Commissioner of Customs and Central Excise, Hyderabad -II Commissionerate in his letter dated 13 -1 -2006 informed the appellant that the Order -in -Original dated 27 -2 -2004 was passed by the Commissioner of Customs and Central Excise, Hyderabad -II Commissionerate and Rs. 10 lakhs penalty was imposed on him and he was directed to pay the penalty within a week time. The appellant denied the liability to pay Rs. 10 lakhs and stated that the notice is liable to be revoked and rescinded in view of his acquittal in the criminal prosecution and that the alleged Adjudication order was never communicated/served on him in order to challenge the same in appeal as per law, vide his letter dated 21 -1 -2006. In response to his letter dated 21 -1 -2006, the Commissioner of Customs and Central Excise, Hyderabad -II Commissionerate by covering letter dated 6 -3 -2006 sent the impugned order dated 27 -2 -2004, passed by Mrs. Sreela Ghosh, Commissioner and he was directed to pay the penalty amount of Rs. 10 lakhs immediately. He has staled that he was never served with the order and he was not aware of the order until he received the same along with the letter dated 6 -3 -2003. He stated that consequent to the receipt of the Order -in -Original, the appellant filed an appeal to the Tribunal. In view of the inordinate delay he was asked to file the COD application and to file his affidavit. In the affidavit, he stated that he received the Order -in -Original along with letter dated 6 -3 -2006 by Registered post only on 9 -3 -2006. He has stated that if the Adjudication order of the Respondent had been served on him earlier, he would have COD application only preferred the appeal in time. Therefore, he stated that there was no delay in filing the appeal and he is filing the COD application only in compliance of the order of the Tribunal. Therefore he requested the Tribunal to condone the delay in filling his appeal No. C/245/2006 in the interest of justice. The other appellant, Shri Abdul Rehman had also filed the similar affidavit stating that he received the Adjudication order only on 9 -3 -2006. The matter came up before the Circuit Bench which was held on 5 -9 -2007 at Hyderabad. During the hearing before the Circuit Bench, certain communications were produced by the appellants to show that the Registered letter supposed to have been sent by the Department was actually returned to the sender as no proper address was mentioned on the envelop. Since there was some doubt about the authenticity of the letters produced the following order : -

(3.) POST the applications for hearing on 17 -9 -2007. Finally the matter came up for hearing before this Bench on 28 -11 -2007.