9911796707
TMI Blog2007 (8) TMI 536X X X X Extracts X X X X X X X X Extracts X X X X ..... smissed. - C/124/2007 - 994/2007 - Dated:- 9-8-2007 - S/Shri P.G. Chacko, P. Karthikeyan, JJ. REPRESENTED BY : Shri C.V. Srinivasamoorthy, Consultant, for the Appellant. Shri M.K.A.K. Mohideen, JDR, for the Respondent. [Order per : P.G. Chacko, Member (J)]. This appeal is against an order passed by the Commissioner of Customs (Appeals), wherein the appellate authority considered three issues and held against the party on all of them. The three issues were following :- (i) Whether the appeal is hit by limitation; (ii) Whether the department was right in issuing show-cause notice under Section 28(1) of the Customs Act to the appellant after a final order of assessment under Section 17 of the Act had already be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 111(m) of the Customs Act and rendering themselves liable for penalty under Section 112(a)/114A of the Act. The intending agents were also called upon to show cause why a penalty under Section 112(a) should not be imposed on them. The proposals in the notice were contested. In adjudication, the Joint Commissioner of Customs confirmed the demand of differential duty against the appellant and imposed on them equal amount of penalty vide Order-in-Original No. 4862/2006 - Gr. 5A dated 8-3-2006. It appears from the records that the Order-in-Original was despatched to the appellant on 20-3-2006 but was returned undelivered with the postal remark Party left. Hence returned to sender , dated 22-3-2006. It is not in dispute that the appeal aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the submissions. It is not in dispute that the Order-in-Original was despatched to the party on 20-3-2006 and the same was returned undelivered, by the postal authorities. The postal remark [Party left. Hence returned to sender] was dated 22-3-2006. Apparently, learned Commissioner (Appeals) took this date as the date of service of the Order-in-Original on the appellant and it was found that their appeal was beyond the condonable period of delay under Section 128 of the Customs Act. Learned Commissioner (Appeals) took aid from Section 27 of the General Clauses Act also. We find that a similar factual situation was considered by the Hon ble Madras High Court (Division Bench) in the case of P. Bhoormal Tirupati v. Additional Collector of Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by properly addressing pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. The normal presumption, unless the contrary is proved, is that the 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 onl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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