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TMI Blog2022 (11) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent/revenue appear to indicate that an entry to that effect was made on 13.09.2017, whereas, the actual dispatch took place on 16.09.2017. The tracking report would be crucial as it would establish clearly as to whether or not the order-in-appeal was served upon the petitioner. As noted above, the respondent/revenue have not been able to place the tracking report. Therefore, there is a semblance of doubt as to whether the order-in-appeal was actually served upon the petitioner. It appears, the revisional authority did not ask itself the correct question, which is, whether the petitioner had, in fact, been served with the order-in-appeal. Since there is a doubt as to whether or not the petitioner had been served with the order-in-appeal, the benefit of doubt should be given to the petitioner - if sub-section (3) of section 153 is read as being independent of the provision made in clause (b) of sub-section (1) of section 153, it would render the latter provision completely otiose. It would also have to be borne in mind that the impugned order has not been passed by the Revisional Authority on merits. Clearly, it takes away from the petitioner the right of having the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same was delivered to him under the cover of letter dated 13.10.2020 sent by the Office of the Commissioner of Customs (Appeals). 3. The case set up by the petitioner is that, immediately upon the adjudication of the show cause notice dated 26.06.2015, an appeal was preferred in the matter. 3.1. It is averred that the appeal was lodged with the Commissioner of Customs (Appeals) on 20.08.2015, via his counsel, one, Mr S.K. Pahwa. 3.2. The petitioner contends that he was following up the matter with his counsel, as regards the outcome of the appeal. 3.3. According to the petitioner, in and about October 2020, he discovered that his counsel i.e., Mr S.K. Pahwa had expired. 3.4. The petitioner takes the position that it is only thereafter-that he approached the office of the Commissioner of Customs (Appeals), which resulted in the Order-in-Appeal dated 06.09.2017 being served upon him. 4. Before we proceed further, we would like to examine the record. 5. Mr Satish Aggarwal, who appears on behalf of the respondent, says he will produce the record on the next date of hearing; in particular, the record concerning the dispatch of the Order-in-Appeal da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve, in the order-in-appeal being served on the petitioner under the cover of the letter dated 13.10.2020. 7.2. On the other hand, Mr Amritanshu says, if nothing else, the petitioner was careless in not following up with his advocate as to the fate of the appeal preferred by him against the adjudication order. 8. We may note that insofar as service of orders is concerned, the statute i.e., the Act provides the mode and the manner in which orders are required to be served. In this context Section 153 of the Act is relevant. The relevant portion of Section 153 is extracted hereafter: 153. Modes for service of notice, order, etc.- (1) An order, decision, summons, notice or any other communication under this Act or the rules made thereunder may be served in any of the following modes, namely:- xxx xxx xxx (b) by a registered post or speed post or courier with acknowledgement due, delivered to the person for whom it is issued or to his authorized representative, if any, at his last known place of business or residence; (2) Every order, decision, summons, notice or any communication shall be deemed to have been served on the date on which it is tendered or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in this case, the order-in-appeal was not dispatched via registered post or through courier. What has emerged is that the order-in-appeal was attempted to be served via speed post. 10.1. The documents relied upon by the respondent/revenue appear to indicate that an entry to that effect was made on 13.09.2017, whereas, the actual dispatch took place on 16.09.2017. 10.2. There appears to be a gap of three days between the entry made in the dispatch register and what, according to the respondent/revenue, is the date of dispatch of the order; this gap could not be explained by Mr Amritanshu. 10.3. Furthermore, only a photocopy of the postal receipt has been placed on record. It is not understood, if the photocopy was retained, why the original of the said document had not been retained; qua this aspect as well, we have not received a satisfactory answer. 10.4. Therefore, insofar as speed post is concerned, the tracking report would be crucial as it would establish clearly as to whether or not the order-in-appeal was served upon the petitioner. As noted above, the respondent/revenue have not been able to place before us the tracking report. Therefore, there is a semblance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t takes away from the petitioner the right of having the tenability of the order-in-appeal being tested, on merits, by the Revisional Authority, and if we were to accept the presumption created by section 153 (3) of the Act, the respondent would have to discharge the initial burden that the order-in-appeal was sent through post, as claimed, at the proper and complete address of the appellant. In view of the gaps, as pointed out hereinabove, we are inclined to lean in favour of the appellant, as any other view would be a leap of faith. 15.1. We may note that the Supreme Court in Saral Wire Craft Pvt. Ltd. v. Commissioner of Customs, Central Excise and Service Tax, 2015 (322) E.L.T 192 (S.C.), has observed that it would be an anathema in law to decide a matter without due notice to the concerned party . In the instant case, as alluded to hereinabove, the lack of knowledge concerning the order-in-appeal resulted in the petitioner being deprived of an opportunity to approach the Revisional Authority within time. 16. Since this aspect vitally affects the appellant, we would lean in favour of the appellant and the appellant having created enough doubt [as noted above], we are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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