2015 (3) TMI 730 - HC - Customs

Condonation of delay - Held that - 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. Now, 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) - Tribunal s order is vitiated by total non application of mind. - Tribunal is in error in dismissing the application for condonation of delay and therefore, this writ petition is allowed by setting aside the Tribunal s order. We allow the petitioner s application for condonation of delay and direct the Tribunal to hear the petitioner s appeal in accordance with law - Decided in favour of assessee.

Summary

Issues:
1. Challenge to the order passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Mumbai.
2. Condonation of delay of more than five years in filing a statutory appeal.
3. Interpretation of Section 153 of the Customs Act regarding the service of order, decision, summons, or notice.

Detailed Analysis:
1. The writ petition challenged the order passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Mumbai. The Tribunal had dismissed the petitioner's application requesting condonation of delay in filing a statutory appeal, which was more than five years overdue. The petitioner-applicant stated that the original order was dated 10 March 2008, but they only received a copy of the impugned order on 20 June 2013. Despite filing the appeal on 23 June 2013 within the statutory period of three months, an objection was raised by the Tribunal's registry regarding the delay.

2. The petitioner-applicant explained that the delay occurred due to the department sending the adjudication order to their old address, even though they had informed about the change of address in 1999. The Tribunal, in its reasons, relied on Section 153 of the Customs Act, which outlines the service of orders, decisions, summons, or notices. The Tribunal's reliance on clause (b) of the section was deemed erroneous as the provision specifies that service should be done by tendering personally, sending by registered post, or through an approved courier. The Tribunal's failure to consider the service by registered post at the changed address led to the dismissal of the application for condonation of delay.

3. The High Court found that the Tribunal's order was flawed due to the non-application of mind and allowed the writ petition by setting aside the Tribunal's decision. The Court accepted the petitioner's explanation for the delay and directed the Tribunal to hear the appeal in accordance with the law. The judgment emphasized that the Tribunal should have considered the date of service of the order or the petitioner's knowledge of it as the starting point for calculating the delay. The Court kept all contentions on the merits of the appeal open while disposing of the writ petition.