2008 (8) TMI 280 - HC - Customs

Appeal limitation - no proper service of the Order-in-Original on the petitioner - OIO dated 11-1-94 received by petitioner along with a covering letter of Superintendent of Customs only on 21-12-99 - petitioner had filed an appeal before the Commissioner of Customs (Appeals), on 28-1-2000, within the time limit prescribed for filing of such appeal from the date of receipt of a copy of OIO - with regard to the issue of limitation, the date of service of OIO would be the date on which the petitioner had received a copy of the said order petition allowed

Issues Involved:
1. Legality of the seizure of gold biscuits and the validity of the petitioner's statements.
2. Proper service of the Order-in-Original under Section 153 of the Customs Act, 1962.
3. Timeliness of the appeal filed by the petitioner under Section 128 of the Customs Act, 1962.

Issue-wise Detailed Analysis:

1. Legality of the Seizure of Gold Biscuits and the Validity of the Petitioner's Statements:
The petitioner, a native of Rajasthan, was subjected to a search by officers from the Enforcement Directorate, Chennai, on 24-2-92, resulting in the seizure of 22 gold biscuits weighing 2565 gms and valued at Rs. 7,35,247.81. The officers also seized certain records and obtained incriminating statements from the petitioner, allegedly under duress. The petitioner retracted these statements upon release on bail and claimed the gold was purchased legally under a baggage receipt from Abu Becker of Kerala. The Additional Commissioner of Customs issued a show cause notice for confiscation under Section 111(d), (i), and (m) of the Customs Act, 1962, and for imposing a personal penalty under Section 112. Despite presenting the original baggage receipt during the personal hearing, the gold was confiscated based on the initial statements, and the baggage receipt was not provided at the time of seizure.

2. Proper Service of the Order-in-Original under Section 153 of the Customs Act, 1962:
The petitioner claimed he did not receive the Order-in-Original until 21-12-99, despite it being allegedly dispatched on 1-2-94 by registered post. The petitioner filed an appeal on 28-1-2000, within three months of receiving the order. Section 153 of the Customs Act mandates that any order or decision must be served by tendering it or sending it by registered post. The respondents argued that the order was deemed served on 1-2-94, based on postal records. The Tribunal upheld this view, stating that the burden of proof was on the petitioner to show non-receipt of the order.

3. Timeliness of the Appeal Filed by the Petitioner under Section 128 of the Customs Act, 1962:
The Commissioner of Customs (Appeals) dismissed the petitioner's appeal on the grounds of limitation, stating it was filed beyond the prescribed period of three months from the date of communication of the order. The petitioner argued that the appeal was timely as it was filed within three months of receiving the order on 21-12-99. The appellate authority and the Tribunal both concluded that the appeal was time-barred, as the order was deemed served on 1-2-94. However, the petitioner contended that the order was not properly addressed, prepaid, and posted as required under Section 27 of the General Clauses Act, 1897.

Conclusion:
The High Court found that there was no evidence to show that the Order-in-Original was properly addressed, prepaid, and posted by registered post as required by law. Consequently, the service of the order could not be deemed to have been effected on the petitioner. The court set aside the orders of the appellate authority and the Tribunal, remitting the matter back to the Commissioner of Customs (Appeals) for a decision on merits, taking into consideration the relevant documents, including the baggage receipt. The writ petition was allowed with no costs.

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