2015 (9) TMI 618 - HC - Customs

Validity of service of Notice Notices send via speed post Condonation of Delay Due to non-existence of All Industry Rate for riding breeches with artificial leather cloths, petitioner had made six applications for fixation of brand rate under Rule 6(1)(a) of Customs and Central Excise Duties and Service Tax Drawback Rules 1995 Application was rejected on ground of two days delay Revision was filed however it was informed that it had been filed beyond time, when calculated from order dated 27.04.2011 Petitioner alleged that he had no knowledge of order dated 27.04.2011 Held that - Respondents in affidavit averted that notice of order dated 27.04.2011 was dispatched through speed post Rule 153 of Customs Act stipulated sending of notices or summons by registered post only No evidence also to show that it was sent to person to whom it was intended or to his agent Therefore, department failed to comply with requirements of Section 153 of Act Even otherwise, delay of two days cannot be said to be fatal Impugned orders set aside Delay condoned Respondent-authorities directed to hear and decide appeal of petitioner on merits Petition disposed of.

Summary

Issues:
1. Quashing of impugned orders under Customs Act
2. Delay in filing appeal and revision
3. Service of notice via speed post vs. registered post
4. Compliance with Section 153 of the Customs Act
5. Condonation of delay and direction to decide appeal on merits

Analysis:

1. The petitioner sought a writ to quash the order dated 18.06.2013 under Section 129DD of the Customs Act and the order dated 27.04.2011 by the Commissioner (Appeals). The petitioner, an export house, imported artificial leather cloth and faced rejection of applications for brand rate fixation due to non-existence of All Industry Rate for the product.

2. The appeal filed by the petitioner was dismissed for a two-day delay, despite the Commissioner having the power under Section 128 of the Customs Act to condone a delay of thirty days. The petitioner filed a revision under Section 129 DD, claiming the order dated 27.04.2011 was communicated late, and the revision was filed within the prescribed three-month period.

3. The respondents argued that the notice of the order dated 27.04.2011 was dispatched via speed post, which they considered served since it was not returned undelivered. However, the court questioned the compliance with Section 153 of the Customs Act, which mandates service by registered post or affixing on the customs house notice board.

4. The court found that the notice sent via speed post did not meet the requirements of Section 153, as it was not sent by registered post and lacked evidence of being delivered to the intended recipient. The department's failure to comply with the Act's provisions raised concerns about the validity of the service method.

5. Ultimately, the impugned orders were set aside, and any delay was condoned by the court. The respondent-authorities were directed to hear and decide the petitioner's appeal on merits within three months without unnecessary adjournments, emphasizing the importance of a fair and timely resolution for both parties involved.