By TIOL News Service

MUMBAI, MAR 26, 2013: VIDE Order-in-Original dated 31/01/2002, the Commissioner of Customs (Prev.), New Customs House, Mumbai confirmed a duty demand of Rs.1,60,90,028/- against the appellant u/s 28(1) of the Customs Act, 1962 along with interest u/s 28AB ibid. Further, absolute confiscation was ordered of the goods viz. cigarettes and biscuits of foreign origin and a penalty of Rs.50 lakhs was imposed on the appellant.

The appellant filed an appeal before the CESTAT on 02/11/2012.

Therefore, the appellant was asked why the appeal should not be rejected as time barred. On 05/12/2012 when the case was called for hearing the appellant has submitted a statement where he declared that he has not received the impugned order due to change in address. Inasmuch as since he had changed his residence from Mumbai to Pune, he came to know of the order only in October, 2012 when he enquired about the status of the case from the department.

The Revenue was also asked by the Bench to bring evidence to show that the service has been completed. In reply thereto, the Revenue submitted documents dated 07/03/2002 which indicated that the order sent to the appellant by registered post came back undelivered and thereafter efforts were made to deliver the order in person by deputing an officer. However, the same could not be served as the person was not available at the given address and was reported to be out of station by the occupant of the premises. This is evidenced from the document dated 03/06/2002 wherein the non-service has been recorded by the authorities. The Revenue also brought on record Operation reports dated 20/08/2001, 23/08/2001 & 28/08/2001 and report from the Police dated 05/07.2001 and 30/06/2001 showing that the appellant was absconding, as there was a COFEPOSA detention order against him pending execution during the said period. There is also on record a proclamation requiring the appearance of the appellant issued by the Additional Chief Metropolitan Magistrate, Bombay vide order dated 28/09/2001 requiring his presence on 21/12/2001 by canceling the bail issued to him earlier. Also, a copy of the impugned order was displayed on the notice board of the Customs House. Therefore, the Revenue prays that the appeal be dismissed as time barred.

The Bench observed -

“5. Under Section 153 of the Customs Act, 1962 service of an order can be done by tendering the order or sending it by a registered post to the person to whom it is intended or to his agent and if the order cannot be serviced in the above manner, by affixing it on the notice board of the Customs House. In the instant case, we have seen from the records produced by the Revenue that the order was sent by registered post and it came back undelivered and thereafter, it was tried to be served by sending a person and the same also could not be done because the appellant was absconding. It is also seen from the records that the order was displayed on the notice board. Therefore the service of the order, as envisaged under Section 153 of the Customs Act, had been completed by way back in June 2002. Therefore the plea of the appellant that he got the order only in October 2012 after a gap of more than 10 years cannot be accepted. The Hon'ble High Court of Kerala in Chellappan Vs Addl. Collector of Customs [1978(2) ELT J547) (Ker)] has held that the modes of service provided in Section 153 are alternate methods by which attempts can be made to serve an order or decision under the Customs Act. Therefore, service by any of the modes is sufficient for the purposes of the said section. Viewed in this perspective, the service has been completed in the instant case way back in 2002. If the appellant had changed the address, it was his duty to inform the change of address to the respondent which he has not done. On the other hand, it is evident that the appellant was absconding in view of the COFEPOSA detention order issued against him and the proclamation made for his appearance by canceling the ball. In other words, the appellant was eluding the law and therefore such a person cannot be given the benefit of condonation of any delay.”

In fine, the Bench held that appeal as time barred and dismissed the same.

In passing: All these years, where was the recovery wing - also in hiding!

(See 2013-TIOL-512-CESTAT-MUM)