9911796707
TMI Blog2008 (8) TMI 280X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner's occupation and had seized 22 gold biscuits weighing 2565 gms valued at Rs. 7,35,247.81. The officers had also seized certain records and had recorded statements from various persons from different places. The officers had also recorded certain incriminating statements from the petitioner by detaining him for more than three days and by using force. The petitioner had retracted the statements made by him immediately after his release on bail, on 22-5-92, and by a letter, dated 30-6-92, the petitioner had submitted that the gold was purchased by him under a baggage receipt No. 00840, dated 20-4-92 and it was cleared on arrival at the Bombay Air Port by Abu Becker of Kerala, from whom the gold biscuits had been purchased by the petitioner. 3. It has been further stated that the Additional Commissioner of Customs had issued a show cause notice calling upon the petitioner to explain as to why the gold biscuits should not be confiscated, under Section 111(d), (i) and (m) of the Customs Act, 1962, and as to why personal penalty should not be imposed on the petitioner, under Section 112 of the Act. The petitioner had submitted his detailed objections to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms (Appeals) had granted a personal hearing of the petitioner on 6-4-2000. During the course of the personal hearing, the Commissioner of Customs (Appeals) had never raised the point of limitation, However, he had passed an order in C4/48/0/2000-SEA.CUS.290/2000, dated 20-4-2000, on the ground of limitation. Since the counsel appearing on behalf of the petitioner had not been told that the point of limitation would also be raised at the time of hearing of the appeal, both factual and legal statements could not be made on the said issue. Therefore, the Commissioner of Customs (Appeals) was not justified in dismissing the appeal on the ground of limitation, without giving the petitioner an opportunity to address the said issue. 5. It has been further stated that the petitioner had filed an appeal before the first respondent Tribunal, on 30-5-2000, challenging the order of the second respondent, specifically, stating that the order of the second respondent was illegal, arbitrary and against the principles of natural justice. The petitioner had further submitted that since the Order-in-Original had not been served on him, under Section 153 of the Customs Act, 1962, there was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner had attempted to introduce a new theory after two months from the date of the seizure stating that he had purchased the seized gold from one Abu Becker of Mollapuram. The petitioner had not produced the baggage receipts at the time of the search and seizure. In his earlier statement, dated 23-4-92, the petitioner had not stated anything about Abu Becker, or the alleged purchase of gold from him. Therefore, the adjudicating authority had held that the petitioner had possessed the gold, illegally, as there was no baggage receipt produced by him at the time of the seizure. The adjudication Order-in-Original had been furnished to the petitioner by Registered Post on 1-2-94. Even at the time of his prosecution before the Additional Chief Metropolitan Magistrate, Egmore, in C.C.No.11 of 1996, a copy of the adjudication order had been produced. The petitioner did not deny, the receipt of the said order during the course of the trial or thereafter. However, with an ulterior motive, the petitioner by his letter, dated 28-10-99, had sought for the copy of the order. The department had furnished a copy of the adjudication order, on 21-12-99, clearly indicating that the order had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-12-99. Since the petitioner had filed the Appeal before the Commissioner of Customs (Appeals), on 28-1-2000, under Section 128(1) of the Customs Act, 1962, it is within the period of limitation prescribed by the statute. In such circumstances, the appellate authority, namely, the Commissioner of Customs (Appeals), the second respondent herein, could not have dismissed the appeal based on the issue of limitation, without going into the merits of the case. No reasons have been given as to how the appeal was belated. Normally, if an appeal had been filed beyond the period prescribed for filing of such an appeal, it would have been returned if it was found that it had been filed without a petition to condone the delay in filing the appeal. Instead, the case had been heard on merits. However, the appeal had been dismissed by the appellate authority based on the issue of delay. No opportunity had been given to the petitioner to explain the delay, if any, during the hearing of the appeal by the second respondent. Since the appeal had been numbered and the waiver application had also been numbered, without being returned, it clearly shows that the appellate authority had impliedly accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0, confirmed the order of the second respondent by stating that the burden is on the appellant thereon to discharge the onus of proof by shoving that the order was never served on him. Since such a burden has not been discharged by the appellant, it would be construed that the Order-in-Original, dated 11-1-94, had been served on the appellant before the Tribunal, who is the petitioner in the present writ petition. On 1-2-94, when the said order, dated 11-1-94, had been despatched to him by registered post, it is deemed to have been served on the petitioner, as provided under Section 153 of the Customs Act, 1962. Therefore, the appeal filed by the petitioner before the appellate authority was out of time. Thus; the first respondent Tribunal had dismissed the appeal confirming the order, dated 20-4-2000, passed by the second respondent. 10. The learned counsel appearing on behalf of the respondents had submitted that the service of any order, summons, or notice, issued under the Customs Act, 1962, shall be served by tendering the order, decision, summons or notice, or by sending it by registered post to the person, for whom it was intended or to his agent. If the order, decision, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the respondents had relied on Section 27 of the General Clauses Act, 1897, to show that it would be sufficient, for the purpose of presuming that the Order-in-Original, dated 11-1-94, passed by the third respondent, was served on the petitioner, in accordance with Section 153 of the Customs Act, 1962, if the said order had been sent by Registered Post. Section 27 of the General Clauses Act, 1897, which reads as follows: 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." It has also been stated that the acknowledgement of the postal department is on 1-2-94. Since service of the order shall be deemed to have been effected o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority. 16. Even though the stand taken by the learned counsel for the respondents may be correct, while reading the provisions of Section 153 of the Customs Act, 1962, along with Section 27 of the General Clauses Act, 1897, the learned counsel has not been in a position to show that the Order-in-Original, dated 11-1-94, sent to the petitioner by registered post, on 1-2-94, had been properly ad dressed to the petitioner. 17. From a reading of Section 27 of the General Clauses Act, 1897, it is clear that the service shall be deemed to be effected, with regard to any document to be served by post, as provided by a Central Act or regulation, by properly addressing, pre-paying and posting by registered post, a letter containing the document, However, nothing has been placed before this Court to show that all the necessary ingredients, as stated above, had been complied with. In such circumstances, the service of the order, dated 11-1-94, cannot be deemed to have been effected on the petitioner as provided by law. Since the second respondent appellate authority, as well as the first respondent Tribunal, had proceeded on the basis that the appeal filed by the petitioner on 28-1- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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