2014 (1) TMI 280 - AT - Customs

Condonation of delay - Non receipt of order - Held that - There is proof of dispatch of the adjudication order by way of extracts of the register maintained by the office of the Commissioner of Central Excise in the ordinary course of business and the extract from the register is supported by a letter from Department of Post at Coimbatore which has confirmed that the letter was not claimed by the addressee - Section 153(b) cannot have application where notice is sent by post and it is not claimed by the address. Therefore I am of the view that this is not a case where it can be considered that there was no delay. I also note that appellant is actually a Customs House Agent and the impugned order is in a matter imposing penalty under Customs Act. Since he is a person who deals with customs authorities on a regular basis it is surprising that he has not followed up to see the outcome of the adjudication proceedings for a very long time. In this background the plea taken that he was ill also seems to be an after-thought and not a genuine reason which cannot be a reason to condone such inordinate delay. Therefore I hold that there is no ground to condone the delay in this case - Condonation denied.

Summary

Issues: Delay in filing appeal, Condonation of delay, Service of order

Delay in filing appeal:
The appeal was filed with a delay of 546 days from the date of the impugned order, leading to the need for condonation of delay. The applicant claimed that he was unaware of the order due to non-receipt and only learned about it later through his lawyer. The applicant argued that domestic difficulties and sickness contributed to the delay in filing the appeal. However, the Revenue produced evidence showing dispatch of the order via speed post, which was returned as 'Unclaimed.' The applicant contended that the order was never served on him, emphasizing the absence of evidence of the order being displayed on the Customs department's notice board as required by law.

Condonation of delay:
The applicant sought condonation of the delay in filing the appeal, stating that the delay was not willful or wanton but due to genuine reasons. He highlighted that he filed the appeal immediately upon learning of the order and that any delay was bona fide. The applicant also mentioned his illness during a specific period as a factor contributing to the delay. However, the department argued against condonation, relying on legal precedents and emphasizing the return of the order as 'Unclaimed' by the postal authorities. The department pointed out the applicant's regular dealings with customs authorities, questioning the genuineness of the reasons provided for the delay.

Service of order:
The issue of whether the order was effectively served on the applicant was crucial in determining the delay in filing the appeal. The department provided proof of dispatch and return of the order as 'Unclaimed' by the postal authorities. The applicant contended that non-receipt of the order was due to his illness during a specific period, and there was no evidence to prove the actual service of the order. The legal provisions regarding the service of orders under the Customs Act were cited by both parties to support their arguments. The Tribunal considered the evidence presented, including the dispatch register and the return of the order, in determining the validity of the service claim.

In the final judgment, the Tribunal rejected the application for condonation of delay, dismissing the stay petition and appeal as well. The Tribunal emphasized the lack of grounds to condone the delay, considering the evidence of dispatch and return of the order as 'Unclaimed.' The Tribunal highlighted the applicant's role as a Customs House Agent and his regular interactions with customs authorities, questioning the validity of the reasons provided for the delay. The decision was based on the application of relevant legal provisions and precedents, ultimately leading to the dismissal of the appeal.