Super House Ltd. vs Union of India

Bharati Sapru, J—Heard Shri S.D. Singh, learned Senior Advocate assisted by Shri Kartikeya Saran, learned counsel for the petitioner and Shri B.K.S. Raghuvanshi, learned counsel for the respondents. This writ petition has been filed by the petitioner seeking a writ of certiorari to quash the impugned order dated 18-6-2013 passed by the respondent under Section 129DD of the Customs Act and order dated 27-4-2011 passed by Commissioner (Appeals), Customs and Central Excise, Noida. A second prayer has also been made by the petitioner that the appeal filed by the petitioner may be decided on merits.

The facts of the case are that the petitioner is an export House having no domestic sale and imports artificial leather cloth (anti scratch fabric) under advance license and stitches it on to the trousers. Due to non-existence of All Industry Rate for riding breeches with artificial leather cloths, the petitioner had made six applications for fixation of brand rate under Rule 6(1)(a) of the Customs and Central Excise Duties and Service Tax Drawback Rules, 1995. The application was rejected on 22-11-2010. When the petitioner filed an appeal, the appeal was summarily dismissed on the ground of two days delay. Even though under Section 128 of the Customs Act, 1962 the Commissioner has a power to condone the delay of thirty days and it cannot be said that the delay of two days is a fatal delay.

Against the order dated 27-4-2011 the petitioner filed a revision under Section 129DD of the Customs Act and according to the petitioner the order dated 27-4-2011 was communicated to him on 25-9-2012 and thereafter the Revision was filed within the prescribed period of three months i.e. on 24-12-2012. On 28-1-2013 the Section Officer of the Department informed the petitioner that the revision had been filed beyond time and it was time barred and no application or prayer has been made for condonation of the delay. The petitioner made a reply that it had no knowledge of the order dated 27-4-2011.

In the counter affidavit filed by the respondents an averment has been made in paragraph 9 that notice of the order dated 27-4-2011 was dispatched on 27-4-2011 through speed post. The relevant portion of paragraph 9 is quoted hereunder:

"The aforementioned speed post was not returned back undelivered by the postal authority, therefore, it has been treated as served upon the petitioner. Further, as desired by the petitioner, the photo copy of Order-in-Appeal No. 83/CUS/Appl/Noida/11, dated 27-4-2011 was sent to the petitioner at their following address.......Therefore, receipt of said letter cannot be considered as date of service of order-in-Appeal"

A pointed question was asked by the Court as to whether to send the notice by speed post was the requirement of law, they were unable to answer or to show any rules that speed post could substitute service under Section 153 which was to be done by the registered post. Rule 153 of the Customs Act is quoted hereunder:

"153. Service of order, decision, etc. - Any order or decision passed or any summons or notice issued under this Act, shall be served-

(a) by tendering the order, decisions, 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."

Other than the fact that it was not sent by registered post, there is also no evidence to show that it was sent to the person to whom it was intended or to his agent. Therefore, the department has failed to comply with the requirements of Section 153 of the Act. Even otherwise, a delay of two days cannot be said to be fatal and should not prevent the department from deciding the appeal of the petitioner on merits.

The impugned orders are set aside. The delay, if any, is condoned by this Court. The respondent-authorities are directed to hear and decide the appeal of the petitioner on merits within a period of three months from today without granting any frivolous adjournment to either side. The writ petition stands disposed of.