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TMI Blog2007 (3) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment of the date of communication of order mentioned in the memorandum of appeal, for which purpose the matter was adjourned. Subsequently, the counsel filed an application to correct the date (27-5-2001) of communication of impugned order as 7-7-2005 in the appeal memo. That application, accompanied by an affidavit of one Shri P. Abdul Razak claiming to be the power-of-attorney holder of the appellant, was not accompanied by the requisite fee and not registered. The said affidavit says that the period of limitation for filing the appeal commenced from 7-7-2005, that the appeal ought to have been filed on or before 5-10-2005 and that there was a delay of 68 days when the appeal was filed on 13-12-2005. The affidavit also contains a prayer for condonation of such delay. Nevertheless, the proper application originally filed along with the appeal is for condonation of delay of 1662 days in the filing of the appeal. No petition has been filed to reduce the extent of delay mentioned in the said delay condonation application. 2. The affidavit of Shri P. Abdul Razak states inter alia that this Tribunal, on 23-1-2007 directed the appellant to correct the factual and typographical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the aforementioned gold biscuits, his power- of-attorney holder engaged a lawyer to prefer appeal against the Commissioner s order dated 25-5-2001 and, subsequently, appeal was filed on 13-12-2005. 4. The case of the respondent as set out in the written submissions dated 23-2-2007 filed by SDR is that a copy of the impugned order was received by one Shri P.K. Saleem at the correct address of the appellant on 31-5-2001 as evidenced by the postal acknowledgement card. The postal article was addressed to Shri Pannikandathil Mohammed Saleem, son of Aboobacker, P.O. Tirur, Malappuram . The acknowledgement card was signed by P.K. Saleem . According to the respondent, P.K. stands for Panni Kandathil and therefore the Commissioner s order can reasonably be said to have been received by the appellant himself. But the appellant would submit, with reference to endorsements made in his passport, that he was abroad on 31-5-2001 and therefore there was no question of his having acknowledged receipt of the Commissioner s order in India at that time. 5. Heard both sides. Learned Counsel submitted that the appellant, who was abroad on 31-5-2001, could never have personally received the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act can be served by sending it by registered post to the person for whom it is intended or to his agent, and that if it cannot be served in that manner it can be served by affixing on the notice board of the Customs Office. It gives an indication that in giving notice under the Act receipt of the same by the person concerned is not relevant; but what is relevant is issuing of the notice in any one of the manners provided in that section. Reference was also made to the Calcutta High Court s decision in Union of India v. Kanti Tarafdar - 1997 (91) E.L.T. 51 (Cal.), wherein Section 153 was interpreted as under :- Section 153 of the Act provides that the notices issued under the Act should be served in the manner as provided for in the said section. The person serving such notice has two options, one is to tender or to physically deliver and the other is to send it by registered post. The section, further, provides that in case either tendering or sending by registered post is not possible, then such service may be effected by affixation. Learned SDR also relied on the Calcutta High Court s judgment in Rajesh Kumar Jain v. Union of India - 1999 (113) E.L.T. 57 (Cal.) wherein, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service shall be deemed to have been properly effected when a letter is properly addressed, pre-paid and posted by registered post. That the notice was sent to proper address, pre-paid and posted by registered post is not under dispute. No other attempt has been made to prove the contrary. The endorsement left is not sufficient to prove the contrary. Apart from it, a reading of the section indicates that the proof to the contrary can only be limited to proving that the service had not been effected at the time at which the letter would be delivered in the ordinary course of post. We find no difficulty in coming to the conclusion that there has been proper service of notice. The Writ Petition was rightly dismissed. This appeal fails and it is dismissed. Learned SDR also referred to the Tribunal s orders in the cases of Lalchand Bhimraj v. Commissioner of Customs, Chennai -2005 (182) E.L.T. 103 (Tri.-Chennai) and Deepak Nitrite Ltd. v. Commissioner of Customs, Mumbai - 2005 (191) E.L.T. 597 (Tri.- Mumbai). She also distinguished the provisions of Section 153 of the Customs Act from those of the corresponding Section 37C of the Central Excise Act, by submitting that the former di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d was addressed thus:- Shri Pannikandathil Mohammed Saleem S/o. Aboobacker, P.O. Tirur, Malappuram . The appellant has no case that this was not his correct address at the relevant point of time. But he says that, being abroad at that point of time, he did not receive the postal article. He had not authorized anybody by name P.K. Saleem to receive it. Therefore, the appellant would contend that the Commissioner s order was not served on him or on any authorized agent of his. Going by the date stampings in the appellant s passport, we must accept the fact of that the appellant was not in India on 31-5-2001. But the registered postal article correctly addressed to him was received by somebody in the name P.K. Saleem on 31-5-2001. Whoever received the article on behalf of the appellant should be considered as his agent inasmuch as Section 153(a) of the Customs Act does not use the expression authorized agent . Therefore, we hold that the impugned order was delivered to the appellant s agent on 31-5-2001 and this date can be reckoned for the purpose of computing the period of limitation for the appeal. On this basis, the delay of the appeal is as big as over four years and six ..... X X X X Extracts X X X X X X X X Extracts X X X X
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