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TMI Blog2009 (4) TMI 561X X X X Extracts X X X X X X X X Extracts X X X X ..... se that the exact date of service of the order on the CHA s clerk is not available with them. According to the applicants, since the copy of the order was actually received in March 2003, there was, in fact, no delay as such in filing the appeals. However, since the order is dated 21-12-1999 and is stated to have been issued on 3-3-2000 and as the exact date of receipt of the copy thereof is not available, the present applications for condonation of delay have been filed by way of abundant caution. 2. The learned Advocate appearing for the applicant submitted that the records nowhere disclose any service of copy of the order on the appellants; however, the records certainly disclose that a copy of the order was served upon the clerk of the CHA of the appellants. It is his further contention that in the absence of proper service of copy of the order upon the appellants and bearing in mind the mandate of Section 153 of the Customs Act, 1962, it cannot be said that there was any service of the copy of the order on the appellants in terms of the provisions of law and hence the appeals filed immediately after acquiring the knowledge of the contents of the order pursuant to the copy th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants have to disclose sufficient cause for delay in approaching the Tribunal is well settled. In the case in hand, it is the case of the appellants that they had no knowledge of the impugned order till the appellants received a copy thereof from the C.H.A. in the last week of March 2003 and, therefore, they could not file the appeal prior to the said date. On the other hand, it is the case of the respondent that copy of the order was duly served upon the agent of the appellants. 5. Te undisputed fact is that the copy of the order was served upon the clerk of the C.H.A. of the appellants much prior to March 2003. However, the contention which is sought to be raised on behalf of the appellants, is that such service war not in compliance with the provisions of law and, therefore, it could not be considered as a valid service, nor it could be considered as sufficient to debar the appellants from filing the appeal consequent to the knowledge of the contents of the order in March 2003. 6. Section 147(3) of the said Act provides that when any person is expressly or impliedly authorized by the owner, importer or exporter of any goods to be his agent in respect of such goods for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruled that a person whose services are retained as CHA is an agent for the limited purpose of arranging release of the goods and once goods are cleared, has no further function to discharge and cannot, without anything more be regarded as continuing to be an agent of the importer and notice served on him cannot be treated as service on the agent of the importer. 9. The Calcutta High Court in D. Sengupta v. Collector of Customs and Others reported in 1987 (31) E.L.T. 30 (Cal.) after considering the provisions of Section 124 of the said Act, had held that even if any notice is issued for adjudication for imposition of penalty, such notice is to be served either on the owner of the goods or the person from whose possession the goods have been seized. It was further held that a clearing agent is not a person within the meaning of Section 124 of the said Act for the purpose of service of notice after the goods have been assessed and cleared from the customs station. It was also observed that clearing agent ceases to be an agent of the importer after clearance of the goods from the customs station. The clearing agent has no further function to discharge after removal of the goods from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellants, however, is that the appellants came to know about the passing of the order for the first time only in March 2003, when the copy of the order was made available to the appellants by the CHA office. The statement has been duly verified in that regard by the appellants. To counter the statement, the respondent has sought to rely on the statement of CHA purportedly recorded under Section 108 of the said Act. 14. There is nothing on record to disclose that the respondent is entitled to rely upon any such statement. If the respondent were desirous of contesting the statement made by the applicants in their application and affidavit in support of the claim, the respondent ought to have filed a counter affidavit in that regard along with an affidavit from the person whose statement the respondents want to rely upon. No credence can be attached to the statement alleged to have been recorded under Section 108 of the said Act. 15. Section 108(1) of the said Act provides that any gazetted officer of Customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order on the agent would be a valid service upon the applicant, in view of Section 153 of the said Act. However, as already seen above, in the case in hand there is nothing on record to disclose that CHA was the agent of the appellants within the meaning of the said expression for the purpose of receipt of the copy of the order. The functions attached to the office of the CHA have been clearly enumerated in the said Regulations. Accordingly, consequent on the payment of duty and on clearance of the goods in January 2000, the relationship of the principal and agent between the applicants and the said CHA were already snapped in January, 2000. The copy of the order was admittedly served in March 2003, when the CHA had already ceased to be the agent of the appellants. There is nothing on record to show that apart from the said CHA, any other copy of the order was served on any other agent duly so appointed either expressly or impliedly by the appellants. 18. In the facts and circumstances of the case, we are satisfied that there was no delay in filing the appeal. 19. For the reasons stated above, therefore, we allow these applications and direct the appeals to be registered. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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