Allowed

M/S. Excel Shipping Services, v. the Commissioner of Customs

Madras HC11 Feb 2016CMA/119/2016

Case brief

AI extract

What is this about?

The High Court allowed an appeal against the Tribunal's dismissal of a condonation of delay application. The court held that a presumption of service could not be made based only on 'unclaimed' remarks and noted the department failed to prove alternative service via notice board affixation.

What did the court decide?

The order of the Tribunal refusing to condone the delay is set aside and remanded to the Tribunal to deal with the application for waiver of pre-deposit in accordance with law.

M/S. Excel Shipping Services, Vs the Commissioner of Customs — Corruption | Madras HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Dated: 11.02.2016

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Coram:

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The Hon'ble Mr.Justice V.RAMASUBRAMANIAN

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and

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The Hon'ble Mr.Justice N.KIRUBAKARAN

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Civil Miscellaneous Appeal No.119 of 2016

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and

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C.M.P.No.1087 of 2016

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M/s. Excel Shipping Services,

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No.606, K.M.Towers,

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Binny Compound II Street,

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Kumaran Road, Tiruppur-641 601.

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... Appellant

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Versus

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The Commissioner of Customs, Coimbatore - 641 018.

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The Customs Excise And Service

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Tax Appellate Tribunal,

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No.26, 1st Floor, Shastri Bhavan Annexure, Haddows Road,

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Chennai - 600 006. ... Respondents

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Civil Miscellaneous Appeal filed under Section 130 of the Customs Act, against the Final Order No.40662/2013, dated 20.12.2013 passed by the Customs Excise And Service Tax Appellate Tribunal, South Zunal Bench, Chennai.

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For Appellant : Mr.T.Sundaranathan For Respondent-1 : Mr.A.P.Srinivas, Sr.Standing Counsel.

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JUDGMENT

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V.RAMASUBRAMANIAN, J

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This appeal is filed by the Assessee under Section 130 of the Customs Act, 1962, challenging the order of the Tribunal, refusing to condone the delay of 546 days in filing the appeal.

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We have heard Mr.T.Sundaranathan, learned counsel for the appellant and Mr.A.P.Srinivas, learned Senior Standing Counsel appearing for the first respondent.

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https://hcservices.ecourts.gov.in/hcservices/

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As against the Order in Original dated 28.5.2009, the appellant filed an appeal on 21.2.2011 with a delay of 546 days. The reason for the delay was stated to be the non-service of the copy of the Order in Original.

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The Department relied upon a letter issued by the Manager of the Speed Post Centre to the following effect:-

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"It is to inform you that the Speed Post Letter with Transaction No.ET531150012IN booked on 29.06.2009 at NPSC Coimbatore RMS addressed to M/s. Excel Shipping Services, No.606, K.M.Towers, Binny Compound II Street, Kumaran Road, Tirupur 641 601 was received by Tirupur HPO, the delivery Office on 30.06.2009 and returned to Sender with remarks 'Unclaimed' on 07.07.2009. The Speed Post was undelivered to your Office on 08.07.2009. The copy of delivery slip is enclosed herewith for your kind information."

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On the basis of the said letter, the Tribunal came to the conclusion that the delay was not properly explained. Consequently, the Tribunal dismissed the application.

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It is seen from the Order in Original that the same was directed against several individuals, including the exporter. The matter related to Duty Drawback. The appellant herein was the Customs House Agent, whose services were engaged by the exporter. Therefore, the role that is attributed to the appellant was that of an abettor.

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Keeping the above in mind, if we have a look at the order of the Tribunal, it is seen that the same was based entirely upon the letter of the Speed Post Centre. Unfortunately, the Department did not have the returned cover itself. Therefore, the question as to whether there was another endorsement to the effect "intimation delivered" or not is not known. From the mere endorsement "unclaimed", it cannot be concluded whether the intimation was delivered or not. Unless both endorsements go together, the presumption of service cannot be made.

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Moreover, in a communication dated 21.12.2011, the Additional Commissioner admitted that the Order in Original was not made known to the appellant in any other manner. This is despite the fact that under Section 153(b) of the Act, there is a provision for affixure of the Order on the Notice Board of the Customs House. It is not a case of the Department that there was affixure.

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https://hcservices.ecourts.gov.in/hcservices/

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Since these aspects were not taken into account by the Tribunal, the appeal is allowed and the order of the Tribunal is set aside. The Tribunal is directed to take up the application for waiver of pre-deposit and deal with it in accordance with law. Consequently, C.M.P.No.1087 of 2016 is closed.

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Sd/-
Assistant Registrar(J)
//True Copy//
Sub Assistant Registrar
To
1. The Registrar,
Customs Excise And Service Tax Appellate Tribunal,
No.26, Haddows Rod, 1st floor Shastri Bhavan,
Annexe Chennai.
2. The Commissioner of Customs Coimbatore.
3. The Customs Excise and Service
Tax Appellate Tribunal, South Zonal Bench, Chennai.
+ 1 cc to Mr.A.P. Srinivas, Advocate Sr.9274
C.M.A. No.119 2016
KSJ(CO)
Eu 07.03.16

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https://hcservices.ecourts.gov.in/hcservices/

M/S. Excel Shipping Services, v. the Commissioner of Customs

Case brief

What is this about?

What did the court decide?

M/S. Excel Shipping Services, v. the Commissioner of Customs

Case brief

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What did the court decide?

What the court decided

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