1998 (11) TMI 610 - Commissioner - Customs

Issues Involved:
1. Receipt and communication of the less charge demand notice and confirmation order.
2. Timeliness of the appeal against the confirmation order.
3. Validity of the order passed ex-parte and its adherence to the Principles of Natural Justice.
4. Impact of long delay in passing the order.

Detailed Analysis:

1. Receipt and Communication of the Less Charge Demand Notice and Confirmation Order:
The appellants contended that they did not receive the less charge demand notice and the confirmation order until July 1998. They argued that the demand was communicated to them only via an order cum notice dated 8-3-95, which they received on 22-3-95. The department argued that the demand notice and the personal hearing memo were sent by post, and the order was issued on 13-8-93 and dispatched on 16-8-93. However, the department failed to provide evidence of receipt by the appellants, such as an acknowledgment or postal confirmation. The judgment noted that the presumption of service under Section 27 of the General Clauses Act requires proper addressing and prepaying, which was not substantiated by the department due to the lack of a full address. Thus, the presumption of service was not applicable, and the service was not proved.

2. Timeliness of the Appeal Against the Confirmation Order:
The appeal's timeliness hinged on the date of communication of the impugned order. According to Section 128 of the Customs Act, the appeal must be filed within three months from the communication of the order. The judgment referenced several cases, including Pravin Lal Mehta v. U.O.I. and Manohar Lal Gupta Jewellers, which established that the limitation period begins from the date of receipt of the order by the affected party. Since the appellants received the order only in July 1998, the appeal filed thereafter was deemed timely.

3. Validity of the Order Passed Ex-Parte and Adherence to Principles of Natural Justice:
The appellants argued that the impugned order was passed ex-parte, violating the Principles of Natural Justice. The judgment concurred, noting that the appellants were not given a reasonable opportunity to present their case. It was held that the order was not sustainable due to this procedural lapse.

4. Impact of Long Delay in Passing the Order:
The appellants contended that the order confirming the demand, passed after over ten years, should be quashed. The judgment referenced the case of Hindustan Lever Ltd. v. Collector, which held that there is no time limit for concluding adjudication proceedings under the Central Excise Act, and by extension, the Customs Act. However, an order may be set aside if the delay results in a violation of the Principles of Natural Justice. The judgment concluded that while the delay alone was not grounds for quashing the order, the ex-parte nature of the order justified setting it aside.

Conclusion:
The judgment set aside the impugned order confirming the demand and allowed the appeal. The case was referred back to the Assistant Commissioner for a fresh decision in accordance with the law, ensuring a reasonable opportunity for the appellants to be heard and their submissions considered.

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