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TMI Blog2006 (7) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... iled an appeal within the statutory time of appeal from the date of receipt of the order by them and the Department raised a preliminary objection from entertaining the appeal on the ground that there was delay in filing the appeal. 3. The learned advocate appearing for the appellant submits that the statutory provisions as envisaged in Section 153 of the Customs Act, 1962 is very clear in as much as that the order has to be physically served upon the appellant. It is his submission that until the order is received, the appellant cannot file an appeal. It was submitted that just by handing over the order to the post office for the onward despatch by Registered post in itself not enough to count the time limit but it will start from the time the order is received in hand by the appellant. He relied upon the following case laws:- 1. Teletube Electronics Ltd. v. Delhi Sales Tax Appellate Tribunal (Del. HC) - 2003 (132) STC 424 (Del.); 2. CIT v. Lunar Diamonds Ltd. (Del.) - 2006 (281) ITR 1 (Del.); 3. Reliance Telecom Ltd. v. CC, New Delhi - 2004 (172) E.L.T. 86; 4. Gopal Chadha v. CEGAT, New Delhi - 1995 (80) E.L.T. 280 (All); 5. Rajshree Dyeing Printing Mills Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be any actual service but a proof of delivery of the order in the post office is enough but in respect of termination of the services it is necessary that the order has to be served on the person. He submitted that the apex court in all their judgments interpreted provisions of Section 27 of the General Clauses Act, which indicates that delivery of the order to the post office is in itself enough to conclude that there was a service of the order. He relies upon the following case laws:- 1. Alka Watches Pot. Ltd. v. UOI Ors. - 1983 (14) E.L.T. 2116 (All.); 2. K. Rama Rao v. Addl. Collector of Customs, Calcutta and Another - 1983 (14) E.L.T. 2267 (Mad.); 3. Surjit Kaur and two Others, Amritsar v. Collector of Central Excise Customs, Chandigarh - 1985 (21) E.L.T. 781 (Tri.); 4. Damodar Keru Naiknaware v. Collector of Customs, 1985 (22) E.L.T. 212 (Tri.); 5. Prem Nath Khanna v. Collector of Central Excise, Allahabad and Others - 1987 (29) E.L.T. 9 (All.); 6. M.V. Chidambaram and Others v. Collector of Customs, Madras - 1987 (29) E.L.T. 601 (Tri.); 7. Haresh Chimanlal Vora and Others v. Collector of Customs, Cochin - 1989 (35) E.L.T. 182 (Tri.); 8. Manoharlal G. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 (Guj.); 36. Mercury Industries v. CCE, Chennai - 2005 (191) E.L.T. 164 (Tri.- Chennai); 37. Deepak Nitrite Ltd. v. C.C. (Adj.), Mumbai - 2005 (191) E.L.T. 597 (Tri.- Mumbai); 38. Sterling Agro Product Processing Pvt. Ltd. v. C.C., Bangalore - 2005 (191) E.L.T. 755 (Tri.-Bang.); 39. Deendayal Didwania v. C.C., Mumbai - 2005 (193) E.L.T. 300 (Tri.- Mumbai); 30. Hindustan Lever Ltd. v. CCE, Chennai-IV - 2006 (194) E.L.T. 352 (Tri.- Mumbai); 41. K. Narasimhiah v. H.C. Singri Gowda and Others -AIR 1966 S.C. 330; 42. B. Bhoormal Tirupati v. Addl. C.C., Madras - AIR 1974 S.C. Madras 224; 43. UOI Others v. Dinanath Shantaram Karekar Others - AIR 1998 SC 2722; 44. V. Raja Kumari v. P. Subbarama Naidu and Another - AIR 2005 Supreme Court 109 6. The learned Senior Departmental representative on the other hand submits that as per Section 153 or Section 37C the revenue has to prove that they have despatched the order by registered post and their responsibility ceases. It is his submission that once the order is handed over to post office to be transmitted through registered post it is presumption that the appellant receives the order. It was submitted that it is not fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny summons or notice issued under this Act, shall be served- (a) By tendering the order, decision, summons or notice or sending it by registered post to the person for whom it is intended or to his agent; or (b) If the order, decision, summons or notice cannot be served in the manner provided in clause (a), by affixing it on the notice board of the customs house.; SECTION 37C. Service of decisions, orders, summons, etc. - (1) Any decision or order passed or any summons or notices issued under this Act or the rules made thereunder, shall be served, - (a) By tendering the decision, order, summons or notice, or sending it by registered post with acknowledgement due, to the person for whom it is intended or his authorized agent, if any; (b) if the decision, order, summons or notice cannot be served in the manner provided in clause (a) by affixing a copy thereof to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended; (c) If the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ards making the assessee aware of the order/decision/summon/notice. The alternate mode of services has to be considered by the authority only if the first two modes have failed and hence simultaneous affixation of the order on the notice board would also not serve the legal requirement. 8. It was argued that the provisions of Section 27 of the General Clauses Act, 1897 would apply in all cases. We read the section: "27. Meaning of service by post. - Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected 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 said section no doubt creates a fiction of deemed service if the conditions of addressing, pre-payment and posting by registered post are complied with, but the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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