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TMI Blog2010 (7) TMI 861X X X X Extracts X X X X X X X X Extracts X X X X ..... aim of exemption by the appellant was allowed by the Customs authority and the goods were cleared thereafter. Subsequently, as a result of audit objection, a less charge demand memo was issued to the appellant on 9-11-93. Vide his office memo dt. 25-4-95, Deputy Commissioner confirmed duty of Rs. 77,54,581/- under Section 28 of Customs Act, 1962. On an appeal against the said office memo, the Commissioner (Appeals) set aside the same and remanded the matter to the Deputy Commissioner to pass fresh order, after dealing with the appellant s contention that show cause notice dt. 9-11-93 was barred by limitation. The appellants did not contest the demand on merit. 2. The impugned order stand passed by Deputy Commissioner in de novo proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record maintained by them till 17-11-93, the same clearly show that the notice was not received by them till 14-11-93 and as such the same is barred by limitation. 4. Countering the arguments of the learned representative, the learned SDR Shri R.S. Sangia, appearing for the Revenue submits that the adjudicating authority has referred to an undated letter received by the appellant on 22-11-93, contesting the demand raised vide notice dt. 9-11-93. In the said letter, the appellants have not raised the issue of time bar nor have they stated in the said letter, the date of actual receipt of notice. The appellants have also not produced any evidence on record to show that the notice was not received by them till 14-11-93. Further, in terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ittedly sent under the cover of Registered Post on 9-11-93. There is no dispute to the above fact. The only dispute is that whereas the appellant is contesting that the said notice was not received by them on or before 14-11-93, Revenue s contention is that having sent the notice on 9-11-93 in terms of provisions of Section 153 of Customs Act, 1962, the same has to be treated as having been served upon the appellant in terms of Section 28 of the Act. 6. For better appreciation, we reproduce the observations made by Deputy Commissioner in his impugned order as under : (d) Even the demand notice dt. 9-11-93 has been issued well within the limitation period which expired on 14-11-93 and a copy endorsed in favour of the CHA s office locate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 months from the relevant date. The said Section does not provide the method or procedure as to how a notice is to be served. How it is to be served is contained in the provisions of Section 153, which deals with the manner of service of the order, decision etc. As per the said Section, the order, decision of the notice issued under the Customs Act shall be served by tendering the same or by sending it by registered post to the person for whom it is intended or to his agent. In terms of said Section, sending notice by registered post will amount to service of the same, thus, satisfying ingredients of Section 28. Apart from this, the said Section also provides service on the agent as amounting to service of the notice. In the instant case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... note that the adjudicating authority has referred to the letter written by the assessee which stands received by the department on 22-11-93, wherein they have accepted the fact of receipt of notice without making any reference to the actual date of receipt. They have also not taken the plea of time bar in the above referred letter. It is the appellant who is contending that the notice was not received by them before 14-11-93 and as such the onus also lies upon them to show that such notice was actually not received by them on or before 14-11-93. Their reply dt. 22-11-93 makes it clear that the same was received before the said date. Their register produced on record also nowhere shows actual date of receipt. 10. In view of our forgoing d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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