2009 (4) TMI 561 - AT - Customs

Appeal to Appellate Tribunal - Limitation - Order - Service of - Agent of assessee - Evidence

Summary

Issues Involved:
1. Condonation of delay in filing appeals.
2. Validity of service of the impugned order on the Custom House Agent's (CHA) clerk.
3. Applicability of Section 153 and Section 147(3) of the Customs Act, 1962.
4. Authority of the CHA to receive the order on behalf of the appellants.
5. Relevance of statements recorded under Section 108 of the Customs Act, 1962.

Detailed Analysis:

1. Condonation of Delay in Filing Appeals:
The appellants sought condonation of a delay of about two years and nine months in filing the appeals. The impugned order was dated 31-12-1999, and the appeals were filed in 2003. The appellants claimed they received a copy of the order only in March 2003 and thus filed the appeals promptly thereafter. The Tribunal noted that the appellants had to show "sufficient cause" for the delay, which they argued was due to the lack of proper service of the order.

2. Validity of Service of the Impugned Order on the CHA's Clerk:
The appellants contended that the service of the order on the CHA's clerk did not constitute valid service under Section 153 of the Customs Act, 1962. The Tribunal examined whether the CHA's clerk had the authority to receive the order on behalf of the appellants and concluded that the service was not in compliance with the law.

3. Applicability of Section 153 and Section 147(3) of the Customs Act, 1962:
Section 153 stipulates the methods of serving orders, including service on an agent. Section 147(3) deems an agent authorized by the importer to be the importer for the purposes of the Act. The Tribunal deliberated on whether the CHA had express or implied authority to accept the order on behalf of the appellants and found that the CHA did not have such authority after the clearance of goods.

4. Authority of the CHA to Receive the Order on Behalf of the Appellants:
The Tribunal referred to the Custom House Agents Licensing Regulations, 1984, and previous judgments, including Krisons Electronic Systems Ltd. v. Collector of Customs, Calcutta, and D. Sengupta v. Collector of Customs. It was determined that the CHA's role was limited to arranging the release of goods, and once the goods were cleared, the CHA ceased to be an agent for the importer for the purposes of receiving orders.

5. Relevance of Statements Recorded Under Section 108 of the Customs Act, 1962:
The respondent relied on a statement recorded under Section 108 to argue that the CHA's clerk had received the order. However, the Tribunal noted that such statements are relevant only in inquiries related to smuggling and cannot be used in proceedings for condonation of delay unless the deponent is available for cross-examination. The Tribunal found no material to counter the appellants' claim that they first learned of the order in March 2003.

Conclusion:
The Tribunal concluded that there was no valid service of the order on the appellants within the meaning of Section 153 of the Customs Act, 1962, as the CHA had ceased to be their agent by the time the order was served. Consequently, the delay in filing the appeals was justified, and the applications for condonation of delay were allowed. The appeals were directed to be registered, and the applications were disposed of.