2016 (10) TMI 23 - HC - Customs

Condonation of delay - Appeal filed after a delay of 382 days, which is over and above the condonable delay of 30 days - order in original dated 11.5.2004 not received and it is admitted in the impugned order that the same was sent by Registered Post and returned undelivered - mode prescribed for communication - section 153 of the Customs Act, 1962, display in the notice board - change of place of business by petitioner, not intimated to respondents - whether on failure to intimate the place of business to respondent, the petitioner would be given relief and his delay be condoned on his claim that he never received the copy of original order? - Held that - when the petitioner has failed to intimate the change of address, the Department cannot be faulted for not having able to serve the order on the petitioner and they having fully followed the procedure under section 153 of the Act - the respondent is fully justified in rejecting the appeal. Alternative remedy of appeal before the CEGAT - Held that - the appeal could have been filed within a period of three months from the date of receipt of a copy of the order. However the petitioner did not prefer any appeal, but chose to file this Writ Petition - one more ground to reject the relief sought for. Petition dismissed - decided against petitioner.

Issues: Challenge to delay in filing appeal, communication of order, change of address notification, alternative remedy of filing appeal before CEGAT

Challenge to delay in filing appeal:
The petitioner sought to challenge the order passed by the first respondent and requested to condone the delay in filing the appeal. The appeal was filed after a delay of 382 days, exceeding the condonable limit of 30 days. The Commissioner of Customs (Appeals) refused to entertain the appeal due to the excessive delay, which was beyond the permissible limit.

Communication of order:
The petitioner claimed that they did not receive the original order dated 11.5.2004, which was sent by Registered Post and returned undelivered. The Assessing Officer dispatched the order correctly as per the provisions of the Customs Act, and the procedure under section 153 was duly followed. The Commissioner of Customs (Appeals) acknowledged these facts in the impugned order and in the counter affidavit. It was noted that the order was also sent to the petitioner's counsel, who received it. The petitioner's lack of knowledge about the order was questioned due to the representation by counsel and the existence of similar appeals during that period.

Change of address notification:
The Court highlighted that the petitioner failed to intimate the change of address to the authorities, leading to non-delivery of the order. The order was sent to the address initially provided by the petitioner, and the responsibility for non-receipt due to the change of address was placed on the petitioner. The Court emphasized that the Department cannot be faulted for the non-delivery of the order when the petitioner did not update their address information.

Alternative remedy of filing appeal before CEGAT:
The judgment pointed out that the petitioner had the option to file an appeal before the CEGAT within three months from receiving the order copy. However, the petitioner chose to file a Writ Petition instead of availing the alternative remedy. This decision was considered as another ground for rejecting the relief sought by the petitioner.

In conclusion, the Court found no valid grounds to set aside the impugned order. The Writ Petition was dismissed, emphasizing that the Department had duly followed the procedure under the Customs Act, and the petitioner's failure to update their address and pursue the appropriate remedy contributed to the rejection of the appeal.

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