2019 (1) TMI 623 - HC - Customs

Service of order - presumption of service of order as the order-in-original was sent to the petitioner through the registered post at the recorded address on 31-8-2016 and since undelivered cover was not received back - Held that - It is no doubt correct that there is a presumption of service upon the petitioner but the same is rebuttable. In case the petitioner had received the order-in-original, we see no reason for the petitioner to have not taken any steps. Once the matter came to the knowledge of petitioner efforts were made to obtain certified copy of the order which clearly indicate the fact that the order-in-original was not received by him - Interest of justice also demands that an opportunity should be provided to the petitioner to contest the matter on merits in appeal - petition disposed off.

Summary

Issues:
1. Classification of Multimedia Speakers under Customs Tariff Act.
2. Issuance of show cause notice and communication delay.
3. Failure to provide certified copy of order-in-original and appeal filing limitation.

Analysis:
1. Classification of Multimedia Speakers under Customs Tariff Act:
The petitioner, a partnership firm dealing in Multimedia Speakers, faced a classification issue due to changes in the Customs Tariff Head. While the firm was declaring goods under Ch. 1858 29 00, the new policy classified Multimedia Speakers with specific features under Ch. 8519 89 90, subjecting them to Counter Veiling Duty based on Reserved Sale Price. This discrepancy led to a search operation and subsequent issuance of a show cause notice under Section 124 of the Custom Act, 1962.

2. Issuance of show cause notice and communication delay:
Following the search operation, the firm received a show cause notice but faced communication delays regarding the penalty imposed. Despite submitting replies and seeking clarification, the petitioner only learned about the order imposing a liability of &8377; 20,81,958 much later, on 3-5-2018. The delay in communication hindered the firm's ability to file an appeal within the stipulated time frame.

3. Failure to provide certified copy of order-in-original and appeal filing limitation:
The petitioner's repeated requests for a certified copy of the order-in-original went unanswered, leading to the inability to file an appeal within the limitation period. The respondents claimed the order was sent via registered post in 2016, but the petitioner's efforts to obtain a copy post-communication delay indicated non-receipt. The court acknowledged the rebuttable presumption of service but emphasized the need for procedural fairness. Consequently, the court directed the respondent to provide the certified copy promptly, allowing the petitioner to file an appeal without objections on limitation. Additionally, the appellate authority was instructed to expedite the appeal process and stay application, ensuring a fair and timely resolution within a specified period.

This detailed analysis of the judgment highlights the key issues surrounding the classification of goods, communication delays, and procedural fairness in providing essential documents for appeal processes.