National Hydroelectric Power Corpn. Ltd. vs Commr. of Cus. (Port)

Debangsu Basak, J.—The petitioner has assailed an order dated June 10, 2004 passed by the Customs Excise and Service Tax Appellate Tribunal [2004 (177) E.L.T. 351 (Tribunal)].

By the impugned order, the Appellate Tribunal has refused to entertain an appeal against an order dated June 21, 2002 passed by the Commissioner (Appeals).

The petitioner has sought to prefer an appeal against an order dated July 14, 1987 in 2002. Such appeal was rejected. Against the rejection, the appellate tribunal was moved resulting in the impugned order.

Learned advocate for the petitioner submits that the original order is a nullity as the same was passed in breach of the principles of natural justice. The petitioner had requested time by a writing dated July 13, 1987. Without informing the petitioner as to the result of such request the order dated July 14, 1987 was passed. It was communicated subsequently in 2002. Immediately thereafter, an appeal was preferred. Since the original order was passed in breach of the principles of natural justice it is a nullity and cannot be cured at the appellate stage. In support of such contention, he has relied upon 1986 (23) E.L.T. 14 (Cal.) [Rungta Sons (P) Ltd. and Another v. Collector of Customs, Visakhapatnam and Others].

Learned advocate for the petitioner has submitted that the claim for service of the original notice cannot be accepted in absence of actual proof of delivery. This view has been expressed by the appellate Tribunal in a decision reported at 2006 (202) E.L.T. 244 : 2008 (10) S.T.R. 81 (Tribunal-LB) as also by the Allahabad High Court in 2015 (316) E.L.T. 446 (Kundan Castings Pvt. Ltd. v. Deputy Commissioner of Central Excise) and 2007 (208) E.L.T. 494 : 2007 (5) S.T.R. 241 (Del.) (Neha Cosmetics v. Commissioner).

In the facts of the present case, I find that an original order of adjudication was passed on July 14, 1987. The petitioner was aware of the proceedings in which such original order dated July 14, 1987 was passed. The petitioner had asked for adjournment by a writing dated July 13, 1987. The petitioner thereafter did not take any steps with regard to such proceedings till 2002. In 2002, the petitioner sought to prefer an appeal from the order dated July 14, 1987. Such appeal was dismissed by an order dated June 21, 2002. A further appeal was preferred before the appellate Tribunal which was dismissed by the impugned order dated June 10, 2004.

The appellate Tribunal has dismissed the appeal of the petitioner primarily on two counts. The first ground being the fact that the petitioner was served with the original order dated July 14, 1987. The appellate tribunal found that the same was sought to be sent under registered post with acknowledgment due card at the registered address of the petitioner. The second ground being the conduct of the petitioner in appearing before the authorities on July 13, 1987 and thereafter not taking any steps with regard to the proceedings till 2002.

So far as the second ground is concerned, no material has been placed on record at the behest of the petitioner to suggest that the petitioner had taken any steps with regard to the adjudicatory proceedings from July 13, 1987 till 2002. This conduct of the petitioner cannot be said to be prudent. The petitioner cannot be allowed to take advantage of such a conduct. Essentially, the petitioner is seeking to take advantage of its negligence in not keeping itself abreast with the developments of the adjudicatory proceedings.

On the first ground, it has been contented that without an actual proof of service, the petitioner cannot be said to have been served with the original order dated July 14, 1987 in spite of the fact that the same was sent by registered post with acknowledgment due card.

None of the three decisions relied upon on behalf of the petitioner is on a factual situation where after 14 years a proof of delivery is sought to be examined. In the present case, the petitioner had approached the Commissioner (Appeals) after 14 years from the date of the original order dated July 14, 1987. It is for the petitioner to establish that, in spite of all reasonable steps being taken on behalf of the petitioner the order dated July 14, 1987 was not made available to it. It has failed to discharge such onus. The onus to prove delivery of the order dated July 14, 1987 has not shifted to the authorities, in the facts of this case. To allow the petitioner to have an appeal heard on the ground of laches actual proof of delivery more particularly given the conduct of the petitioner as noted above, would be miscarriage of justice.

In the present case, the original order dated July 14, 1987 cannot be said to be vitiated by the principles of natural justice. The petitioner was aware of the proceedings. It chose not to appear thereon. It chose to issue a letter dated July 13, 1987 and thereafter did not follow it up or kept itself abreast with the developments or the progress of the adjudicatory proceedings. A prudent person acting reasonably is expected to keep a track of the proceedings. The ratio of Rungta (Sons) (supra) therefore has no manner of application in the facts of this case.

In such circumstances, I find no merit in the present writ petition. The same is dismissed. No order as to costs.