By TIOL News Service

MUMBAI, MAR 17, 2015: THE CESTAT dismissed the petitioner's application requesting condonation of delay of more than five years in filing the statutory appeal and, therefore, the petitioner is before the Bombay High Court.

Background: The registry of the Tribunal had raised an objection and pointed out that the order impugned in the appeal is dated 10 March 2008 whereas the appeal has been filed on 23.06.2013. Pursuant thereto, the petitioner filed an application seeking condonation of delay.

The applicant pointed out that SCN was issued on 14.09.1998. On May 12,1999 they informed the department that they had changed the address/place of business. Yet, the adjudication order was dispatched at the old address. Therefore, postal remark "left" was endorsed on the packet. Further, the notice for personal hearing was sent at the new address, however, the copy of the adjudication order was sent at the old address and, therefore, they were not aware about the passing of the adjudication order. And it is only when the recovery proceedings were initiated that the petitioner became aware of the adjudication order and that is how the delay occurred and there is sufficient cause for condonation of the delay. Inasmuch as the copy of the impugned order was served upon the applicant only on 20 June 2013 and they filed the appeal on 23 June 2013 which is within the statutory period of three months.

The High Court noted that the Tribunal had relied on the provisions of section 153 of the Customs Act, 1962.

After extracting the same, the High Court observed -

++ Clause (a) thereof denotes as to how the order/decision passed or any summons or notice issued under the above section shall be served. It shall be by tendering it personally or sending it by registered post to the person for whom it is intended or to his agent.

++ The words inserted with effect from 28 May 2012 are "registered post or by such courier as may be approved by the Commissioner of Customs". We do not find as to how reliance could be placed on clause (b) by the Tribunal in this case.

++ It is only when the service is not possible in the manner provided in clause (a) that affixation of the order, decision, summons or notice on the notice board of the customs house is permitted.

++ In such circumstances, if the packet containing copy of the adjudication order dated 10 March 2008 was not sent by registered post at the address to which the petitioner has shifted as informed way back in 1999, then, there is no question of placing reliance on clause (b) of the above section.

++ The Tribunal's order is vitiated by total non-application of mind. The Tribunal should have referred to the service by registered post and which ought to be effected at the changed address. Then the version of the petitioner applicant deserves acceptance. It is the date of the service of the order or its knowledge from which in this case the petitioner applicant claimed that the time will begin to run. The delay was satisfactorily explained by the petitioner.

Holding that the Tribunal is in error in dismissing the application for condonation of delay, the Writ Petition was allowed by setting aside the Tribunal's order.

(See 2015-TIOL-642-HC-MUM-CUS )