A.N. SHUKLA Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) This application seeks waiver of pre -deposit and stay of recovery in respect of an amount of penalty of Rs. 50,000/ -.

(2.) SDR raises a preliminary objection. He submits that the appeal filed by the party is time -barred. A certified copy of the impugned order of the Commissioner of Customs had been dispatched by registered post to them on 4 -5 -99. Again, upon specific application; filed by the party, another copy of the impugned order was issued to him and dispatched by registered post on 10 -2 -2003. The requirement of Section 153 of the Customs Act was duly fulfilled by the department. Hence, DR submits, the date of communication of the impugned order, shown in the appeal memorandum, is not correct. When the period of limitation is reckoned with reference to the dates of earlier dispatch of the impugned order, the present appeal will be found to be time -barred. These submissions are contested by the Counsel for the applicant, who submits that the applicant received a copy of the order of the Commissioner on 29 -7 -2003 on the basis of a direction issued by the Hon'ble High Court of Allahabad. By Order dated 19 -5 -2003 in writ petition filed by the applicant, the High Court had directed the first respondent (Ministry of Finance, Department of Revenue, through Commissioner of Customs, Preventive, Lucknow) to issue a certified copy of the impugned order to the applicant. Pursuant to the High Court's direction, the office of the Commissioner issued a certified copy of the order to the applicant on 29 -7 -2003. This submission of the Counsel is evidenced by the High Court's order available on record. The first respondent in the writ petition filed by the party was the Ministry of Finance, Department of Revenue, represented by none other than the Commissioner of Customs, who passed the order. The Commissioner cannot plead ignorance of the writ petition or of the results thereof. Obviously, the party had gone to the High Court, aggrieved by non -receipt of a certified copy of the Commissioner's order. If the Commissioner had a case that he had already issued a certified copy of his order to the party, he would have stated so before the High Court. The DR has shown me today relevant extracts from the dispatch register maintained by the Commissioner's office, which indicated dispatch of the order by registered post on 4 -5 -99 and on 10 -2 -2003. These materials are, however, of no avail now. These materials should have been placed before the High Court. In any case, it appears from the High Court's order and the subsequent proceedings that a certified copy of the order of the Commissioner was received for the first time by the applicant on 29 -7 -2003. Reckoned from that date, the present appeal is within the time. The preliminary objection is overruled.

(3.) Moving the stay application, the ld. Counsel submits that a penalty of Rs. 50,000/ - has been imposed on the applicant by the Commissioner under Section 112(b) of the Customs Act. This penalty is based on the finding that the seized truck of the applicant was rendered liable for confiscation by him. Counsel further submits that the truck, confiscated by the Commissioner, is yet to be redeemed. The truck was valued by the department at Rs. 6 lakhs.