2015 (11) TMI 686 - HC - Customs

Condonation of delay - Service of notice - Held that - Even according to the learned counsel the order was sought to be served on the Appellant by Speed- Post. Admittedly, the order was not served upon the Appellant by the registered post as required under clause (a) of Section 153. The Division Bench of this Court in the case of Amidev Agro Care Pvt. Ltd. v. Union of India reported in 2012 (6) TMI 304 - BOMBAY HIGH COURT while considering the para materia provisions under the Central Excise Act 1944 has held that since Speed-Post is not mentioned under Section 37-C of the Central Excise Act, service of notice by Speed-Post is not valid in law. We find that in the present case also since speedpost is not mentioned and since even according to the Respondent, the order was sought to be served by Speed-Post and since there is not even an acknowledgement in token of service by the Speed-Post, there was no valid service in law. - even an attempt was not made to serve the Appellant in the manner prescribed under clause (a) of Section 153. - Decided in favour of assessee.

Summary

Issues:
Challenge to order dismissing application for condonation of delay in challenging previous order.

Analysis:
The judgment by the Bombay High Court involved a challenge to an order passed by the CESTAT dismissing an application for condonation of delay in challenging a previous order dated August 29, 2007. The appellant had imported Bronopol between May 2004 to January 2007 and was issued a show cause notice on April 11, 2007. The appellant contended that they were not served with the original order and only became aware of it upon receiving a recovery notice. The appellant immediately filed an appeal along with an application for condonation of delay, which was rejected, leading to the present appeal.

The appellant argued that they were not served with the original order and there was no deliberate delay on their part. They emphasized that they promptly filed an appeal upon becoming aware of the order and that there was no reason for them to not file within the prescribed period while before the original authority. On the other hand, the respondent contended that the order was served by affixing it on the notice board of the Customs House, which they argued was in accordance with the law.

The High Court considered two key questions: whether the tribunal was justified in holding that the original order was duly served on the appellant, and whether the tribunal was justified in rejecting the application for condonation of delay. The court examined Section 153 of the Customs Act, which specifies the methods of serving orders or decisions. It was noted that the order was attempted to be served by Speed-Post, not by registered post as required by law. Referring to a previous case, the court held that service by Speed-Post was not valid in law, and since there was no valid service on the appellant, the tribunal was not justified in dismissing the application for condonation of delay.

In conclusion, the High Court allowed the appeal, quashed the impugned order, and set aside the dismissal of the application for condonation of delay. The court held that the service of the original order was not in accordance with the law, leading to the decision in favor of the appellant.