GOLD'N SAND Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) M /s. Gold'n Sand and M/s. Sathya Deep Exports have filed the abovecaptioned appeals being aggrieved from the order passed by the Collector of Customs, Customs House, Kandla. The said appeals were received on 22nd August, 1994. Applications for condonation of delay duly supported with affidavits have been filed. Since the issue involved is identical, the same are being disposed of by this common order. Shri L.P. Asthana, learned advocate has appeared on behalf of the appellants. He pleaded that in the present matters the show cause notice was issued on 24 -5 -1993 and was received at Delhi address and there was no service though a mention was there on the show cause notice and the advocate had sent the reply on 11 -8 -1993 from Delhi address giving his address and the appellants had waived the personal hearing. The order was passed on 15 -3 -1994 and issued on 25 -3 -1994. He further stated that the Bench had ordered the production of the original records and he has been told by the learned SDR that original records are with him. He pleaded that Section 153 of the Customs Act, 1962 lays down the procedure and mode of service and notice has to be served in terms of Section 153 and first it has to be sent to the party or his agent and the authority can resort to Section 153 (b) which is the mode by affixture on the notice board of the customs house only in the event of failure of service under Section 153 (a). He pleaded that in the present matter, the order was returned by the postal authorities on the ground "left without leaving address" and it was sent by the Delhi postal authorities on 21/4/94 whereas the order for effecting service by affixture is dated 13/4/94 which is prior to the return of the papers from Delhi postal authorities and as such service by afixture is illegal and bad in the eyes of law. He pleaded that since the appellants had vacated the premises in the year 1988 and as such there was no question of service at Kandla and this fact is well within the knowledge of the Revenue authorities and in the order it has been mentioned that the factory premises were evicted by the officers of the Kandla Free Trade Zone under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and an inventory of goods lying in stock at the factory premises was taken. In support of his arguments, Shri L.P. Asthana relied on a decision of the Hon'ble Supreme Court in the case of Payed Ashok Kumar Jindal v. Captain Ashok Kumar Jindal, reported in 1992 (60) E.L.T. 19 (S.C.) and also the decision of the Tribunal in the case of Surjit Kaur and Two Others, Amritsar v. Collector of Central Excise and Customs, Chandigarh, reported in 1985 (21) E.L.T. 781 (Tribunal). He further pleaded that he had received the order from the Office of the Collector on 7th June, 1994 and had served the same on his client on 1st July, 1994. He further stated that if 7th June, 1994 is taken as the date of service, the appeal was filed on 22nd August, 1994 which is within limitation and as such, there is no delay and the applications for condonation of delay filed by the appellants become infructuous. He pleaded that similar facts are in the case of Sathya Deep Exports. He pleaded for the disposal of the applications for condonation of delay.

(2.) SHRI K.K. Jha, the learned SDR, who has appeared on behalf of the respondent pleaded that the appellants had two addresses, one at Kandla Free Trade Zone and other at Delhi. He pleaded that the order was duly sent at the Kandla Free Trade Zone and on 13 -4 -1994 it was displayed on the Notice Board in terms of Section 153 (b) of the Customs Act 1962 since the Revenue had failed to serve the same at the Kandla Free Trade Zone address and it was incumbent on the part of the appellants to intimate any change in address from Kandla Free Trade Zone to Delhi and the sending of the letter to the advocate is a courtesy on the part of the Department. Shri K.K. Jha pleaded that there was negligence on the part of the appellants and as such, there was no question of condonation of delay as the appeals were filed after the expiry of limitation. He stated that the postal envelope in the case of Gold'n Sand was a registered letter No. 496, dated 13 -4 -1994 and perusal of the back of the envelope shows that it was returned by the postal authorities on 21 -4 -1994 though the postman had visited the premises of the appellants at Delhi address i.e. D -19, Okhla Phase No. 1 on 18th and 19th April, 1994 too. He pleaded that since the service at Kandla Free Trade Zone was before 13th April, 1994 and as such the service by affixture on 13th April, 1994 is a valid service in the eyes of law. He pleaded for rejection of the condonation of delay applications.

(3.) IN reply, Shri L.P. Asthana, learned advocate again reiterated that since the appellants had left the Kandla Free Trade Zone in the year 1988 and as such, there was no question of any service on the appellants at Kandla Free Trade Zone. He pleaded that the show cause notice was received at Delhi and the reply was sent from Delhi. He stated that nobody was living at Kandla and the appellants had waived the personal hearing at Kandla. He pleaded for the disposal of the condonation of delay applications as argued by him.