Bajaj Bandhu vs Commissioner of Cus. (Appeals), Chennai

T.S. Sivagnanam, J.—Heard Mr. K. Jayaraj, learned Counsel appearing for the petitioner and Mr. T. Pramodkumar Chopada, learned Standing Counsel appearing for the respondents.

The petitioner seeks to challenge the order passed by the first respondent and to direct the first respondent to condone the delay in filing the appeal and dispose of the same on merits.

Admittedly, the Appeal has been filed after a delay of 382 days, which is over and above the condonable delay of 30 days. Thus, the Commissioner of Customs (Appeals) was fully justified in refusing to entertain the Appeal, more so, when the delay is beyond the condonable delay limit.

However, the issue raised by the petitioner is that the order in original dated 11-5-2004 was not received by them and it is admitted in the impugned order that the same was sent by Registered Post and returned ''undelivered''. However, the important aspect to be noted is that the provisions of the Customs Act, provides for procedure, by which the order should be communicated. The mode adopted by the Assessing Officer, is correct, as he had despatched the order by Registered Post and the cover was returned ''undelivered''. Therefore, the Officer had to follow the procedure under Section 153 of the Customs Act and it has been followed.

The above facts have been noted in the impugned order passed by the Commissioner of Customs (Appeals). Further in the counter-affidavit, this fact has been elaborately stated. Furthermore, the respondents would add that the copy of the order was also sent to the Counsel, because the petitioner was represented by a Counsel before the Adjudicating Authority and the Counsel has received the order. Though this may not be the sole reason for computing the limitation, yet, it can be taken for the purpose of coming to the conclusion that there is reasonable presumption that the petitioner would have come to know about the order passed. One more factor is that during relevant point of time, there were several such imports and all were contested by filing appeals and therefore, it may not be the case where the petitioner had absolutely no knowledge of the orders of adjudication.

At the time when the Writ Petition was entertained, initially the interim order of stay was granted. Subsequently, the Department entered appearance and it was pointed out to the Court that the order-in-original was desptached by Registered Post on 14-5-2004 and it was returned ''undelivered'' and thereafter displayed in the Notice Board as per the provisions contained under Section 153 of the Customs Act and it was also pointed out that the petitioner has shifted its place of business from the original place and such shifting was ever communicated to the respondents for the purpose of communicating the orders. This Court in its order dated 27-9-2006, has recorded a finding that the petitioner did not intimate the change of address, is not in dispute. At this juncture, it would be relevant to extract the operative portion of the said order :

"3. However, Mr. K. Ravichandrababu, learned counsel appearing for the respondents has pointed out that the original order dated 11-5-2004 was despatched to the petitioner on 14-5-2004 by registered post with acknowledgement due and the same was returned undelivered and thereafter the said order was displayed on the notice board as per the requirement under section 153-B of the Customs Act, 1962. The learned Standing Counsel also pointed out that while the petitioner stated to have shifted his place of business from the original place, no intimation as regards such shifting was ever communicated to the respondents for the purpose of communication of the orders. The said fact is not in dispute.

In the said circumstances, when the order dated 11-5-2004 was duly forwarded to the address which was originally placed before the respondents by the petitioner, and if the communication of the said order did not reach the petitioner, because of non-intimation of the change of address, the petitioner is to be only blamed.

In such circumstances, I do not find any scope to continue the interim stay inasmuch as the filing of the appeal before the first respondent cannot be held to be within time as claimed by the petitioner. The interim stay stands vacated and W.P.M.P. is dismissed."

In the light of the above facts, when the petitioner has failed to intimate the change of address, the Department cannot be faulted for not having able to serve the order on the petitioner and they having fully followed the procedure under Section 153 of the Act, the first respondent is fully justified in rejecting the appeal. That apart, as against the impugned order, the petitioner had effective alternate remedy of filing an appeal before the CEGAT and the appeal could have been filed within a period of three months from the date of receipt of a copy of the order. However the petitioner did not prefer any appeal, but chose to file this Writ Petition. This also one more ground to reject the relief sought for.

For all the above reasons, no grounds have been made out to set aside the impugned order. Accordingly, the Writ Petition fails and the same is dismissed. No costs.