9911796707
TMI Blog1998 (11) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... the copies of the demand notice and the order only in July, 98, that the Hon ble Bombay High Court had on 22-7-98 granted liberty to them to apply for amendment of the appeal pending with the Commissioner (Appeals), and that as soon as they would receive the copy of the order, they would intimate the Commissioner (Appeals). He also enclosed a proposed amendment to the Appeal. The Appellants also produced the acknowledgment given by the office of the Commissioner (Appeals) showing receipt of their letter, dated 10-7-95 enclosing the rectified appeal but the records of the said office do not show any such receipt. A copy of the order of the Hon ble High Court was received from the Asstt. Commissioner on 14-10-98. In terms of the said order the amendment application has to be disposed of expeditiously within 6 weeks, and if the amendment is granted, the appeal has to be disposed of within further 3 months. The advocate of the appellants vide letter dated 27-10-98 requested for personal hearing in the matter on any date. 2. (i) During the course of personal hearing on 5-11-98, the appellants Advocate elaborated that the impugned goods were cleared vide Bill of Entry, dated 27-7-82, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on alternatively the case be remanded for decision after hearing. 2. (ii) The Asst. Commissioner of Customs, Gr. IV, NCH, Mumbai, who also attended the personal hearing stated that the demand notice and the personal hearing memo were sent by post, but the importer did not reply or appear for personal hearing and therefore the Asst. Commissioner was compelled to pass the order, that on merits, the order was maintainable, and that there was no time limit for confirmation of demand under Section 28 of the Customs Act. 2. (iii) After examining the application for amendment and the background of the case, I observed that the appellants have stated that they have not received the less charge demand notice and the impugned confirmation Order and were not aware of the same till they received the order cum notice, dated 8-3-95 on 22-3-95, that there was no evidence readily available showing that the said notice or order has been communicated to the appellants prior to the receipt of the order cum notice, dated 8-3-95 communicating the gist of the confirmation order, that the appellants had in the appeal stated that they would submit detailed grounds on receipt of copies of the order and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore it should be deemed that they have been served on the appellants especially when they have not given any evidence contrary to the effect that it was not served on them. He contended that served should be read as sent to party, that the burden to rebut the presumption of service would lie on the party challenging the factum of the service and that there was no evidence adduced by the appellants to rebut the service except the unsupported affidavit. He has pointed out that the legal fiction incorporated in Section 27 relating to a letter pre-paid, properly addressed and sent by registered post was fully complied with in this case and therefore the presumption would lie, and that since the appeal has been filed after the gap of more than 4 years the same was liable to be rejected. He also stated that the case laws cited by the appellants were not applicable to the facts of the present case which were distinguishable. The Asstt. Collector further clarified vide letter, dated 17-11-98 that the endorsement on the Order-in-Original did not mention full address and maintained that no registered letter would be accepted by the post office without full address. He has also in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urnished by the department that the letter containing the document was properly addressed inasmuch as the copy of the order available in the file of the department and the register of the registered letters endorsed by the postal department just mention only the name of the appellants and not the full address to which the order/the letter was to be or was sent. In this context the following observation of the Hon ble High Court of Madras in K. Rama Rao v. Addl. Collector - 1983 (14) E.L.T. 2267 (Mad.) is very relevant : The matter of display is a statutory requirement as per Section 153(b) of the Act. The display in the notice board cannot be a matter of jotting in the file. Though it may not be necessary to delineate in extenso as to how the display should be done in due compliance with Section 153(b) of the Act, normally it is expected that sufficient copies of the show cause notice are taken and one such copy is displayed and another copy is preserved with the requisite endorsement made thereon by the concerned authority who had actually displayed it on the notice-board . The procedure contemplated by the Hon ble High Court as above in the case of a notice to be displayed under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants only in July 1998 and therefore the appeal is not time barred. 3. (v) As regards the contention of the appellants that since the impugned order confirming the demand has been passed after over 10 years and hence not sustainable in the light of various judicial decisions, I observe that the Hon ble CEGAT has in the case of Hindustan Lever Ltd. v. Collector - 1998 (103) E.L.T. 492 (Tribunal), after considering various decisions on the point, held that there was no time limit under the Central Excise Act (provisions identical to those in the Customs Act) for conclusion of the adjudication proceedings and that an order would not be liable to be set aside on the ground of long delay but may be on the ground of violation of Principles of Natural Justice occasioned by long delay. As such the order cannot be quashed on the ground of long delay. I further observe that the appellants have also contended that the impugned order has been passed in an ex parte manner which causes and deserves the impugned order to be quashed and/or set aside as the Principles of Natural Justice has been thoroughly violated by the impugned order and have urged to remand the case in the alter ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
