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Judgment
K. Mohan Ram, J.—By the consent of counsel on either side, the writ petition itself is taken up for final disposal.
The short facts that are necessary for the disposal of the above writ petition are set out below:
The Deputy Commissioner of Customs, the second respondent herein, passed an order-in-original No. 2096/2004 dated 07.05.2004 by ordering
finalisation of the Bill of Entry No. 378621 dated 11.02.202. Aggrieved by the said order, the petitioner preferred an appeal before the
Commissioner of Customs (Appeals), the first respondent herein. The Commissioner of Customs (Appeals), without going into merits of the case,
by his Order-in-Appeal No. C3/301/D/2005-Sea and C.Cus.No. 512/2005, dated 05.08.2005 dismissed the appeal as time barred on the
ground that he has no power to condone the delay beyond the period prescribed under the statute. Aggrieved by the above said order of the first
respondent, the above writ petition has been filed.
It is contended by the petitioner that the delay in filing the appeal was neither willful nor wanton and only due to the bonafide belief and
understanding and no prejudice will be caused if the delay in filing the appeal is condoned and the appeal is permitted to be tagged along with the
issue which is already allowed by the same Commissioner (Appeals) in respect of 68 other appellants.
A counter affidavit has been filed by the respondents, wherein it is stated as follows:
(i) The Order-in-Original was passed on 07.05.2004 and the same was sent to the petitioner by Registered Post as contemplated u/s 153 of the
Customs Act 1962 (hereinafter called as the Act). But the same was returned on 19.05.2004 with the postal remarks ""absent"" and also ""intimation
delivered"" on 12.05.2004 and 13.05.2004 respectively and therefore the petitioner had knowledge about the order sent by the respondent, but
has purposely and deliberately avoided receiving the order. Thereafter the order was displayed in the Office Notice Board as contemplated u/s
153(b) of the Act. As per Section 27 of the General Clauses Act, unless a different intention appears, the service shall deemed to be effected by
properly addressing, pre-paying and posting by registered post. Therefore, the order-in-original should be deemed to have been served on the
petitioner on 12.05.2004 and 13.05.2004. The Appellate Authority has power to entertain an appeal filed within a period of 90 days from the date
of communication of orders passed by the Original Authority. Since the appeal was filed beyond the statutory period the same was dismissed and
u/s 128A of the Ac, the Appellate Authority is empowered to condone the delay of 30 days alone and not beyond that.
(ii) It is further contended that the petitioner is having an alternative remedy by way of an appeal to the Tribunal, but without exhausting the
statutory remedy the above writ petition has been filed and hence the same is liable to be dismissed. The contention of the petitioner that the appeal
had been filed within the condonable period of 30 days is not admitted in the counter.
Heard both.
The learned Counsel for the petitioner reiterated the contentions raised in the writ petition and submitted that the order-in-original was not
actually served on the petitioner and unless there is an actual service of the order, it could not be said that the period of limitation prescribed u/s
128A of the Act started to run. The thrust of the argument of the learned Counsel for the petitioner is that when admittedly the order-in-original
sent by Registered Post had been returned with the postal endorsements ""absent"" and ""intimation delivered"", it should be construed that there was
no actual service on the petitioner and unless there is actual service, the time prescribed under the Act will not start running. According to the
petitioner, the petitioner received the copy of the order only on 04.04.2005 and the appeal was filed immediately and there was no delay in filing
the appeal. The learned Counsel for the petitioner further made submissions relating to the merits of the case, which in the view of this Court cannot
be considered in the writ petition.
The learned Counsel for the petitioner in support of the above submissions relied upon the following judgments, viz.,
i) K. Narasimhiah Vs. H.C. Singri Gowda,
ii) Oyatape Fibres Pvt. Ltd. Vs. Collector of Customs, .
iii) C.D. Govinda Rao Vs. Government of India, .
Per contra Mr. V. Bharathidasan, learned ACGSC submitted that the order-in-original had been sent to the petitioner as contemplated in
Section 153 of the Act and the same was returned with the postal endorsements ""absent"" and ""intimation delivered"". The learned ACGSC further
submitted that u/s 27 of the General Clauses Act, unless a different intention appears, the service shall deemed to be effected by properly
addressing, pre-paying and posting by registered post. He further submitted that the endorsement in the returned cover ""intimation delivered"" will
suggest that the petitioner was deliberately avoiding to receive the order sent by Registered Post. The learned ACGSC further submitted that the
above writ petition filed without exhausting the alternative remedy of appeal to the Tribunal is liable to be dismissed. In support of his submissions,
the learned ACGSC relied upon the following judgments viz.,
i) B. Bhoormal Tirupati Vs. The Additional Collector of Customs, Custom House, Madras,
ii) K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Another, and
iii) Karnataka Public Service Commission Vs. P.S. Ramakrishna, .
Since the writ petition had been filed on 13.09.2005 and the same had been admitted and interim order had been passed in favour of the
petitioner, in the considered view of this Court, it may not be equitable to reject the writ petition on the ground of availability of alternative remedy
by way of an appeal to the Tribunal. Therefore, the contention of the learned ACGSC regarding the maintainability of the writ petition is not
acceptable.
Now this Court has to consider whether the contention of the learned Counsel for the petitioner is acceptable and the law laid down in the
judgments relied upon by him are applicable to the facts of this case.
(i) In K. Narasimhiah Vs. H.C. Singri Gowda, , the Honourable Supreme Court of India while considering Section 27(3) of the Mysore Town
Municipalities Act (22 of 1951) observed as follows:
(11) ""Giving"" of anything as ordinarily understood in the English language is not complete unless it has reached the hands of the person to whom it
has to be given. In the eye of law however ""giving"" is complete in many matters where it has been offered to a person but not accepted by him.
Tendering of a notice is in law therefore giving of a notice even though the person to whom it is tendered refuses to accept it. We can find however
no authority or principle for the proposition that as soon as the person with a legal duty to give the notice despatches the notice to the address of
the person to whom it has to be given, the giving is complete. We are therefore of opinion that the High Court was wrong in thinking that the
notices were given to all the Councillors on the 10th October. In our opinion, the notice given to five of the Councillors was of less than three clear
days"".
(ii) In C.D. Govinda Rao Vs. Government of India, , the Division Bench of the Kerala High Court while considering Section 79 of the Gold
Control Act, in paragraph 11 at page 213, observed as follows:
It is thus clear from the authoritative pronouncement of the Supreme court that the giving of notice contemplated by Section 79 is not the same
thing as sending the notice.
(iii) In Oyatape Fibres Pvt. Ltd. Vs. Collector of Customs, , the Learned Single Judge while considering the meaning to be given to the word
given"" occurring in Sections 110(2) and 124(a) of the Act, by relying upon the judgments reported in AIR 1966 S.C. 330 and 1987 (27) E.L.T.
209 (Cal.), held as follows:
... I have already held that a vested civil right to get the seized goods released in terms of Section 110(2) of the Act arises as of right to the
importer if no notice u/s 124(a) is given within six months from the seizure of the goods, it must be held that the word ""given"", as used, in Sections
110(2) and 124(a) of the Act must necessarily mean that it must have been received by the importer or at least it must have reached the importer
and that giving of notice is not completed only by sending it by registered post.
In the said decision, his Lordship Mr. Justice Tarun Chatterjee as he then was referred to the decision of the Division Bench of this Court reported
in AIR 1974 Mad. 224 equivalent to 126 E.L.T. 65 (Mad.) and distinguished the same on facts.
In all the above said three decisions the emphasize was on the meaning to be given to the word ""giving"" and the Honourable Supreme court,
the Kerala High Court and the Calcutta High Court held that it cannot be said that since the person with a legal duty to give the notice dispatches,
the notice to the address of the person to whom it has to be given, the giving is complete.
Now this Court has to consider the applicability of the decisions relied upon by the learned ACGSC to the facts of this case.
(i) In Karnataka Public Service Commission Vs. P.S. Ramakrishna, , the Honourable Supreme court of India observed as follows:
Though the notice was sent to the respondent on 29.09.1993, it came back with an endorsement ""Not present. Hence return to sender"". It
would be obvious that the respondent is avoiding service. Notice must, therefore, be deemed to have been served on the respondent.
Relying on the above observation of the Honourable Supreme court of India the learned ACGSC submitted that in the present case the notice sent
by Registered Post was returned with the postal endorsements ""absent"" and ""intimation delivered"" and hence it is obvious that the petitioner was
avoiding service.
(ii) In K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Another, , in paragraph 25, it is observed as follows:
Thus, when a notice is returned by the sendee as unclaimed such date would be the commencing date in reckoning the period of 15 days
contemplated in Clause (d) to the proviso of Section 138 of the Act. Of course such reckoning would be without prejudice to the right of the
drawer of the cheque to show that he had no knowledge that the notice was brought to his address. In the present case the accused did not even
attempt to discharge the burden to rebut the aforesaid presumption.
Relying on this observation, the learned ACGSC submitted that the order-in-original sent by Registered Post and which was returned with the
postal endorsements ""absent"" and ""intimation delivered"" should be construed as actual service on the petitioner. If the above observation of the
Honourable Supreme court of India is carefully considered it could be easily seen that for the purpose of fixing the commencing date in reckoning
the period contemplated under Clause(d) to the proviso of Section 138 of the Negotiable Instruments Act, the Honourable Supreme Court of
India has observed as above, but clarified the said observation with the further observation that of course such reckoning would be without
prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address. In the case on
hand such an opportunity will not be available to the petitioner and therefore in the construed view of this Court, the above observation of the
Honourable Supreme court of India may not apply to the facts of this case.
Now we have to consider the applicability of the decision reported in 126 E.L.T 65 (Mad) : AIR 1974 Mad. 224. In that case, the Division
Bench of this Court, was considering the correctness of the order of the Customs Authorities in the light of the requirements of Sections 110(2)
and 124 of the Customs Act, in that case on behalf of the Customs Authorities the notice sent by Registered post and returned with the
endorsement ""left"" on 13.05.1969 which was admittedly within six months was relied on, while on behalf of the appellant in that case it was stated
that the notice with endorsement ""left"" was not proper service and therefore could not be relied on. In that context, the sufficiency of the said
service was considered in the light of the provisions contained in Section 153 of the Act. The Division Bench has further observed as follows:
Section 153 of the Act states that any order or decision passed or any summons or notice issued under the Customs 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; Sub-section
(b) of Section 153 need not be referred to as it does not arise in this case. A notice had been sent by registered post duly addressed to the
Appellant. The section requires that notice shall be served by sending it by registered post to the person for whom it is intended. The section does
not require that effective service should be effected by the appellant receiving it. This position is made clear by reference to Section 27 of the
General Clauses Act which states that where any Central Act requires any document to be served by post, then, unless a different intention
appeals, 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 normal presumption, unless the contrary is proved, is that the service shall be deemed to have been properly effected when a letter is
properly addressed, pre-paid and posted by registered post. That the notice was sent to proper address, pre-paid and posted by registered post
is not under dispute. No other attempt has been made to prove the contrary. The endorsement ''left'' is not sufficient to prove the contrary. Apart
from it, a reading of the Section indicates that the proof to the contrary can only be limited to proving that the service had not been effected at the
time at which the letter would be delivered in the ordinary course of post. We find no difficulty in coming to the conclusion that there has been
proper service of notice.
The learned ACGSC heavily relies upon the said Division Bench Judgment of this Court and submitted that the order-in-original had been sent by
Registered Post as contemplated in Section 153(a) of the Act and the same was returned with the postal endorsements ""absent"" and ""intimation
delivered"" and hence it should be taken that the order-in-original had been served on the petitioner. Further, the learned ACGSC submitted that as
contemplated in Section 153(b) of the Act the order was displayed in the Office Notice Board and hence when the order-in-original had been
served as contemplated in Section 153 of the Act, the contention of the petitioner that the copy of the order was not served on him, as contended
by the department but it was served only on 04.04.2005, is not acceptable.
All the three decisions relied upon by the learned Counsel for the petitioner emphasizes on the meaning to be given to the word ""given
occurring in the relevant statutes. But in the Division Bench judgment of this Court reported in 126 E.L.T 65 (Mad) : AIR 1974 Mad. 224, the
sufficiency of service in the light of Section 153 of the Act has been dealt with and it is held that if the notice (in that case) sent by Registered Post
but returned with the postal endorsement ""left"" has been considered to be sufficient service. Further, the mode of service contemplated in Section
153(b) of the Act has also been completed in this case by displaying the order-in-original in the Notice Board of the office of the respondents.
Therefore, this Court is of the view that the contentions put forth by the learned ACGSC merit acceptance than the contentions of the learned
Counsel for the petitioner.
In the impugned order, the first respondent has considered the above said facts relating to the despatch and return of the notice sent by
registered post and the display of the order in the office notice board and has rightly held that when the postal authorities informed the petitioner
that mail was waiting for them, they should have contacted the postal authorities and collected the same. Further, the first respondent has stated
that since there was delay of 272 days, over and above the condonable period of 30 days, the delay could not be condoned by the first
respondent acting u/s 128 of the Act.
As per Section 128 of the Act, an appeal by a person may be filed to the Commissioner (Appeals) within 60 days from the date of
communication to him of any decision or order passed under the Act by an Officer of Customs lower in rank than a Commissioner of Customs.
The period of limitation prescribed under the Section commences from the date of communication of the decision or order and Section 128 does
not say that the period of limitation commences only from the date of actual service of the decision or order.
The learned Counsel for the petitioner submitted that considering the fact that similar issue that arises for consideration in the Appeal filed by
the petitioner is already decided in favour of the importers in other connected appeals and if the appeal is considered on merit by the first
respondent the petitioner will get a favourable decision and on that basis submitted that the appeal may be remitted back to the first respondent to
consider the same on merits. But the said contention of the learned Counsel for the petitioner could not be countenanced as the appeal had been
filed by the petitioner with the delay of 272 days, which is beyond the condonable period of 30 days provided in Section 128(1) of the Act. It
could not also be countenanced for the reason that the proviso to Section 128(1) of the Act specifically stipulates that the Appellate Authority can
condone the delay up to 30 days only. Therefore, unless the statute makes provision for condonation of delay or extension of time on cause being
shown or otherwise, the Appellate Authority functioning within the framework of the statute cannot relax the time limits prescribed thereunder.
Therefore, the impugned order of the first respondent is perfectly valid and legal and the same has to be sustained.
For the foregoing reasons, the above writ petition fails and accordingly the same is dismissed. No costs. Consequently, the connected WPMP
and WVMP are closed.