2016 (3) TMI 341 - HC - Customs

Validity of Tribunal s order - Refuse to condone delay of 546 days on the ground of not properly explained - Held that - it is seen that the Tribunal s order was based entirely upon the letter of the Speed Post Centre. Unfortunately, the Department did not have the returned cover itself. Therefore, the question as to whether there was another endorsement to the effect intimation delivered or not is not known. From the mere endorsement unclaimed , it cannot be concluded whether the intimation was delivered or not. Unless both endorsements go together, the presumption of service cannot be made. Moreover, in a communication dated 21.12.2011, the Additional Commissioner admitted that the Order in Original was not made known to the appellant in any other manner. This is despite the fact that under Section 153(b) of the Act, there is a provision for affixure of the Order on the Notice Board of the Customs House. It is not a case of the Department that there was affixure. Therefore, as the Tribunal did not take into account the above aspects, the order is set aside. - Decided in favour of appellant

Summary

Issues:
1. Delay in filing the appeal under Section 130 of the Customs Act, 1962.
2. Non-service of the copy of the Order in Original.
3. Role of the Customs House Agent as an abettor in a Duty Drawback matter.
4. Reliance on a letter from the Speed Post Centre for determining delay explanation.
5. Lack of proper consideration of all relevant factors by the Tribunal.

Analysis:
1. The appeal was filed challenging the Tribunal's order refusing to condone a delay of 546 days in filing the appeal under Section 130 of the Customs Act, 1962.
2. The appellant cited the reason for the delay as the non-service of the copy of the Order in Original dated 28.5.2009, which led to the appeal being filed on 21.2.2011.
3. The appellant, a Customs House Agent engaged by the exporter, was deemed an abettor in a Duty Drawback matter involving several individuals, including the exporter.
4. The Tribunal based its decision on a letter from the Speed Post Centre indicating the undelivered status of the Speed Post sent to the appellant's office, leading to the dismissal of the application due to the perceived lack of proper explanation for the delay.
5. The High Court noted that the Tribunal's reliance on the Speed Post Centre's letter alone was insufficient, highlighting that the Department did not possess the returned cover and the absence of an endorsement confirming delivery. The Court emphasized the importance of considering all relevant factors, such as the lack of alternative notification methods like affixing the Order on the Customs House Notice Board.
6. Consequently, the High Court allowed the appeal, setting aside the Tribunal's order and directing a reevaluation of the application for waiver of pre-deposit in accordance with the law, emphasizing the need for a comprehensive assessment of all pertinent aspects.