3M ELECTRO AND COMMUNICATION Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THERE are three applications before us, all filed by the appellants viz. M/s. 3M Electro and Communication (India) Pvt. Ltd. ['3M Company' for short]. One of these applications is for condonation of delay of appeal and the same was filed as directed by the Bench. Another application is for stay of operation of the impugned order and the third one is for out -of -turn hearing and disposal of the appeal.

(2.) ON a few earlier occasions, the question had arisen before the Bench as to whether the appeal is within time. The appellants through counsel had taken the position that they had never received a copy of the impugned order passed by learned Commissioner (Appeals), in normal course. The appellate Commissioner's order was passed on 30.6.2003. The order on its face indicates that it was despatched on 5/9. In the normal course it should have been received sometime in September 2003. It is the appellant's case that the above order was not so received. They came to know only in April 2006 that the above order had been passed by the Commissioner (Appeals). They received a xerox copy of the order on 7.4.2006 and filed the appeal on 15.6.2006. If the period of limitation is computed with reference to the date 7.4.2006, the appeal is within time and that is why any delay condonation application was not filed by the appellants. On one of the earlier occasions, learned Jt. CDR obtained a report from the Commissioner and filed the same along with an extract from the relevant register maintained by the P&T Department. The report was to the effect that the impugned order was dispatched by registered post to the addressee on 5.9.2003 and therefore, in terms of Section 27 of the General Clauses Act, 1897 the order should be deemed to have been duly served on the party. The P&T document which accompanied the report indicated the date of posting of the postal article to be 5.9.2003. On the strength of these materials, learned Jt. CDR insisted that the appeal should be considered to have been filed with heavy delay ascertainable with reference to the date 5.9.2003. It was at this stage that the Bench wanted the appellants to file this application.

(3.) TODAY learned Counsel for the appellants is armed with an order passed by a Larger Bench of this Tribunal viz. Margra Industries Ltd. v. Commissioner of Customs, New Delhi 2006 (202) ELT 244 (Tri. LB), wherein the provisions of Section 153 of the Customs Act and Section 27 of the General Clauses Act were examined by the Bench and it was held as under: In the light of the above we answer the reference as under: (a) Dispatch of adjudication order by speed post/registered post would not amount to a valid service in the absence of proof of actual deliver of speed post. (b) The Sections in themselves indicate that there cannot be any simultaneous affixing of the order on the notice board and the affixing of the order has to be considered after failure of the first two modes. The ratio of the decision is contained in paragraphs 7 & 8 of its judgment. The gist of the Larger Bench decision is that mere registration of a postal article with the P&T Department for dispatch would not be construed as service of the article on the addressee for purposes of Clause (a) of Section 153 of the Customs Act and the corresponding clause of Section 37C of the Central Excise Act and that Section 27 of the General Clauses Act would not be applicable in view of the fact that the intention of the legislature has been fully taken care of under the above provisions of the Customs Act and the Central Excise Act.