9911796707
TMI Blog1994 (11) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants imported 12 Crates and one case of Apple Grading Equipment vide Bill of Entry No. 1603, dated 14-6-1982 and found that there was shortage of goods. The appellants in their appeal memo said that they claimed refund of duty vide application dated 3-9-1982 filed through their Customs House Agent M/s. Vaz Forwarding Pvt. Ltd. Bombay for shortages. The Asstt. Collector in his order dated 28-10-1986 rejected the claim on the ground that The Agents are not entitled to file an appeal or claim of refund in their own name and right in relation to imports, export, .. . . . Since in the present case the refund has been filed by an Agent in his own name as `claimant , it ought to suffer some consequence and therefore rejected the claim as non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the beneficiary was appellant and that specific authorisation dated 16-9-1987 given to Clearing Agent was issued subsequent to rejection of Refund claim. In regard to the personal hearing, he submitted that no personal hearing was needed, when the appeal itself was time-barred. Ld. Advocate submitted in rejoinder that they challenge the finding that they had received the order on 28-10-1986. He submitted he will produce necessary document including the copy of the Contract entered into with Clearing Agent which would establish the claim that they filed the appeal as soon as they received the order and that their agents were duly authorised by them to make a claim of refund on their behalf. 5. An affidavit from Shri J.A. Qadri, General ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the veracity of the version of the credibility of the statement. The party who does not want to controvert the veracity of the evidence from or testimony gathered behind his back cannot expect to succeed in any subsequent demand that there was no opportunity of cross-examination.... 8. This however is not the case here. The appellants have vehemently contested that their appeal was time barred. In case of Smt. V.P. Kunhi Ayichu v. Collector of Customs, Ahmedabad [1986 (26) E.L.T. 1021 (Tri.)] the Tribunal held that the principles of natural justice do not require that an opportunity for the hearing should have been given to the appellants when their appeals were time barred. Relying upon the judgment of Apex Court in case of K.L. Trip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case are that the appellants vehemently challenged that their appeal is time-barred and therefore it cannot be straightway presumed that since the appeal was time-barred, personal hearing was not necessary. Collector (Appeals) in his Order No. 1540/88-BCH, dated 25-2-1988 has observed, The impugned order was despatched to the appellant on 28-10-1986 whereas the appeal has been filed by the appellants on 3-8-1987 i.e., after a period of six months. He has proceeded on the assumption that date of despatch is the date of communication within Section 128 of the Customs Act. This is obviously not a correct interpretation of the word `communication . This is in my view not the exact meaning. The word `communication as is used in Section 128 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts into consideration before deciding the issue of delay in filing the appeal. In the absence of Memo of Appeal it is not possible to know what the exact date was, x x x x x of the receipt of order either by the Clearing Agent or the appellant. The order dated 28-10-1986 of Asstt. Collector of Customs does not bear any endorsement as to the person to whom it is despatched nor the records indicate the date when it was received either by the appellants or by the Clearing Agent. 14. The date this order actually served on the Clearing Agent of the appellant, or if it was served on the appellants directly, the date thereof is of vital importance in deciding the claim made by the appellants. In absence of any information in the papers and abse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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