RELIANCE TELECOM LTD. Vs. CC

JUDGEMENT

(1.) The issue involved in these two appeals, filed by M/s. Reliance Telecom Ltd., is whether the appeals filed by them against two Order -in -Original both dated 31.12.99 were filed within the time limit stipulated in Section 128 of the Customs Act.

(2.) Shri Rohan Shah, learned Advocate, submitted that the appellants imported computer hardware and filed Bills of Entry dated 21.6.97 and 15.7.97 classifying the goods under Sub -heading 8471.49 of the First Schedule to the Customs Tariff Act; that the consignments were permitted to be cleared on their furnishing Bond under the provisions of Section 143 of the Customs Act for production of import licence or otherwise proving that licence produced was valid for clearances of the goods; that by a letter dated 9.12.2000, they wrote to the .Deputy Commissioner of Customs stating that the Bonds were pending for cancellation and requested that copies of bonds and other related documents be provided to their clearing agent; that they were forwarded copies of the Orders dated 31.12.1999 by their clearing agent which were received by him on their behalf on 22.1.2000; that by these orders dated 31.12.1999 the Deputy Commissioner purported to confirm the demands of duty issued under Section 28(1)/142 read with Section 18 of the Customs Act on the ground that the Appellants had not discharged their obligation to submit the Special Import Licence in respect of the goods imported by them; that they filed two appeals before the Commissioner (Appeals) who, under the impugned Order have rejected their appeals holding that the Order -in -Original which were despatched by speed post and acknowledged by the Postal Authorities, were deemed to have been served on the Appellants on 3.1.2000 in terms of Section 153 of the Customs Act and accordingly the appeals filed by them were barred by the time limit stipulated in Section 128 of the Customs Act.

(3.) The learned Advocate, further, submitted that the Orders dated 31.12.1999 were received by their clearing agents on their behalf only on 22.11.1999 and as such appeals filed by them on 22.11.2001 are within three months time specified in Section 128 of the Customs Act; that it is settled law that it is the date of knowledge and not the date of despatch of the Order that is relevant; that the Clearing Agent in his letter dated 20.2.2001 has clearly mentioned that on 22.11.2000 his representative received the copy of confirmed demand from Customs House and the same was given to the Appellants thereafter. The order was never communicated to them and the negative aspect can be proved by them only by an Affidavit; that Shri A. Shankar, Vice President has affirmed an affidavit in which it is mentioned that the Appellants have not received the original certified copy of the Order -in -Original; that for the first time a copy of the said Order -in -Original was received by the Appellants from M/s. S.K. Jain and Company, Clearing and Forwarding Agents New Delhi on 22.11.2000. He emphasized that communication is a rebuttable presumption which has been rebutted by them. He relied upon the decision in the case of Green View Radio Service v. Laxmibai Ramji 1990 (SC2) GJX 479 SC wherein it has been held by the Supreme Court that "the presumption of service of a letter sent by registered post can be rebutted by the addressee by appearing as witness and stating that he never received such letter.The burden would then shift on the plaintiff who wants to rely on such presumption to satisfy the Court by leading oral or documentary evidence to prove the service of such letters on the addressee." The learned Counsel also mentioned that it has been held by the Tribunal in the case of CCE, Indore v. R.R. Tea Co. that presumption of service of a letter by Post is a rebuttable presumption; that an affidavit filed by the addressee is sufficient to rebut the presumption.