Full Text
HIGH COURT OF DELHI
Date of Decision: 22.09.2022
GAGAN GUPTA ..... Petitioner
Through: Mr Prem Ranjan Kumar, Advocate.
Through: Mr Akshay Amritanshu, Sr. Standing Counsel with Mr Ashutosh Jain, Adv.
HON'BLE MS JUSTICE TARA VITASTA GANJU [Physical Hearing/Hybrid Hearing (as per request)]
RAJIV SHAKDHER, J.: (ORAL)
JUDGMENT
1. The instant writ petition is directed against the order dated 07.04.2022 passed by the Additional Secretary, GOI/Revisional Authority in exercise of powers under Section 129DD of the Customs Act, 1962 [in short, the ‘Act’].
2. The Revisional Authority has dismissed the revision application filed by the petitioner, principally, on the ground that the prayer made by the petitioner for condonation of delay was not substantiated, having regard to the material placed on record before him.
3. We had heard the matter briefly when the writ petition was listed before us for the first time on 12.05.2022. At that juncture, the respondent/revenue was represented by Mr Satish Aggarwal. 3.[1] Having regard to the record available with us at that juncture and the arguments advanced by the counsels, including the counsel for the petitioner – Mr Prem Ranjan Kumar, the following was noted:
4. Thereafter, the matter was taken up on 25.07.2022, when Mr Akshay Amritanshu, learned senior standing counsel, appeared on behalf of the respondent/revenue. He informed us that a counter-affidavit had been filed in the matter. Since the counter-affidavit was not on record, the matter was adjourned for today i.e., 22.09.2022. 4.[1] However, on that date i.e., on 25.07.2022, Mr Amritanshu had inter alia, placed before us a copy of the letter dated 20.07.2022, along with a photocopy of the speed post receipt that bore the date 16.09.2017. This receipt also indicated the time, which was noted as 11.20 A.M.
4.2. This aspect is brought to the fore by us, as the principal issue which arises for consideration in this case is: whether or not the petitioner was served with the order-in-appeal dated 06.09.2017? The stand of the petitioner that this order was served upon him by the office of Commissioner of Customs (Appeals) under the cover of the letter dated 13.10.2020.
5. The counter-affidavit filed on behalf of the respondent/revenue, inter alia, includes two documents. One, the photocopy of the extract of the dispatch register. Two, as noted above, the photocopy of the speed-post receipt generated by the postal department.
6. As a matter of fact, we had, on the previous date i.e., 25.07.2022, called upon Mr Amitanshu to ascertain as to whether or not the tracking report was available.
6.1. We may note that Mr Amritanshu has returned with instructions. As per his instructions, the tracking report is not available at this point of time. Mr Amritanshu says that the record concerning the same has been weeded out.
7. Thus, as noticed above, the short point which arises for consideration in the instant case is as to whether or not the order-in-appeal dated 06.09.2017 was served upon the petitioner. Mr Kumar takes the same position as was taken on 12.05.2022, that the petitioner became aware of the order-in-appeal dated 06.09.2017 and the fact that an appeal filed against the order-in-original dated 24.06.2015, by his earlier counsel, Mr S.K. Pahwa, had been dismissed in and about October, 2020. 7.[1] Mr Kumar, thus, contends that it is only when the petitioner discovered that Mr S.K. Pahwa had expired, that he made enquiries with the officers of the Commissioner of Customs (Appeals) which resulted, as noticed above, in the order-in-appeal being served on the petitioner under the cover of the letter dated 13.10.2020.
7.2. On the other hand, Mr Amritanshu says, if nothing else, the petitioner was careless in not following up with his advocate as to the fate of the appeal preferred by him against the adjudication order.
8. We may note that insofar as service of orders is concerned, the statute i.e., the Act provides the mode and the manner in which orders are required to be served. In this context Section 153 of the Act is relevant. The relevant portion of Section 153 is extracted hereafter:
9. A conjoint reading of sub-section (1) clause (b) and sub-sections (2) and (3) of the Section 153 would show that the Legislature has provided the mode and manner of effecting service of an order, decision, summon, notice or any other communication issued under the Act.
9.1. Clause (b) of sub-section (1) of Section 153 provides the mode by which service can be effected. Inter alia, the said clause provides that service is required to be effected via registered post or speed post or courier with acknowledgment due. The delivery is required to be made to the person to whom the order, decision, summon or notice or communication is issued or to his authorised representative, if any, albeit, at his last known place of business or residence. 9.[2] Sub-section (2) of Section 153 provides that every order, decision, summon, notice or communication is deemed as having been served on the date on which it is tendered or published or a copy thereof is affixed or uploaded in the manner provided in sub-section (1). 9.[3] Likewise, sub-section (3) of Section 153 provides that when such order, decision, summon, notice or communication is sent by registered post or speed post, it shall be deemed to have been received by the addressee on the expiry of the period normally taken by such post in transit unless the contrary is proved.
9.4. What emerges upon a conjoint reading of the aforesaid provisions is that if the order, decision, summon, notice or communication is sent via registered post or speed post or courier, it has to be accompanied with an acknowledgement due card/slip. Unlike a registered post, where acknowledgement due card is the mode for recording delivery, in cases where the mode of dispatch is the speed post, the record of acknowledgement or delivery can only be gathered through the tracking report. This appears to be the mode which the Legislature has incorporated for effecting service of an order, decision, summon, notice or communication issued under the Act or Rules.
10. Admittedly, in this case, the order-in-appeal was not dispatched via registered post or through courier. What has emerged is that the order-inappeal was attempted to be served via speed post.
10.1. The documents relied upon by the respondent/revenue appear to indicate that an entry to that effect was made on 13.09.2017, whereas, the actual dispatch took place on 16.09.2017.
10.2. There appears to be a gap of three days between the entry made in the dispatch register and what, according to the respondent/revenue, is the date of dispatch of the order; this gap could not be explained by Mr Amritanshu.
10.3. Furthermore, only a photocopy of the postal receipt has been placed on record. It is not understood, if the photocopy was retained, why the original of the said document had not been retained; qua this aspect as well, we have not received a satisfactory answer.
10.4. Therefore, insofar as speed post is concerned, the tracking report would be crucial as it would establish clearly as to whether or not the orderin-appeal was served upon the petitioner. As noted above, the respondent/revenue have not been able to place before us the tracking report. Therefore, there is a semblance of doubt as to whether the order-in-appeal was actually served upon the petitioner.
11. Although, in a sense, Mr Amritanshu is right that the petitioner should have been more proactive in ascertaining as to whether the appellate authority had disposed of the appeal, but that, by itself, in our view, cannot be the reason to hold that the revisional authority was correct in concluding that this was not a case fit for condoning the delay.
12. It appears, the revisional authority did not ask itself the correct question, which is, whether the petitioner had, in fact, been served with the order-inappeal. Since there is a doubt as to whether or not the petitioner had been served with the order-in-appeal, the benefit of doubt, in our view, should be given to the petitioner.
13. Which brings us to the question whether a presumption concerning service being affected on the addressee (in this case the appellant) can be drawn under sub-section (3) of section 153 of the Act, upon expiry of the period normally taken by such post in transit. While ascertaining the scope and ambit of this provision, it has to be borne in mind, firstly, that the presumption is rebuttable; secondly, the presumption can only be drawn if there is material on record to show that the addressee’s postal address was complete and accurate; thirdly, this provision would have to align with, as noticed above, clause (b) of sub-section (1) of section 153, which requires such post i.e., registered post or speed post to be accompanied by an acknowledgement due card or slip. Therefore, if sub-section (3) of section 153 is read as being independent of the provision made in clause (b) of subsection (1) of section 153, it would render the latter provision completely otiose.
14. Furthermore, in this case, while the dispatch register, which is a selfserving document, contains the complete address of the appellant, the photocopy of the postal receipt does not give the complete address of the appellant. The address given on the receipt reads as follows: “Krishna Nagar PIN: 110051.”
14.1. It does not advert to the building number or the street number. This is apart from the fact that the respondent/revenue has been unable to produce the original receipt.
15. It would also have to be borne in mind that the impugned order has not been passed by the Revisional Authority on merits. Clearly, it takes away from the petitioner the right of having the tenability of the order-in-appeal being tested, on merits, by the Revisional Authority, and if we were to accept the presumption created by section 153 (3) of the Act, the respondent would have to discharge the initial burden that the order-in-appeal was sent through post, as claimed, at the proper and complete address of the appellant. In view of the gaps, as pointed out hereinabove, we are inclined to lean in favour of the appellant, as any other view would be a leap of faith.
15.1. We may note that the Supreme Court in Saral Wire Craft Pvt. Ltd. v. Commissioner of Customs, Central Excise and Service Tax, 2015 (322) E.L.T 192 (S.C.), has observed that it would be an “anathema in law to decide a matter without due notice to the concerned party”. In the instant case, as alluded to hereinabove, the lack of knowledge concerning the orderin-appeal resulted in the petitioner being deprived of an opportunity to approach the Revisional Authority within time.
16. Since this aspect vitally affects the appellant, we would lean in favour of the appellant and the appellant having created enough doubt [as noted above], we are unable to draw a presumption in favour of the respondent/revenue that service of the order-in-appeal would have taken place in the ordinary course upon expiry of the period normally taken by such posts in transit.
17. For the foregoing reasons, the impugned order dated 07.04.2022 passed by the Additional Secretary, GOI is set aside.
18. The matter is remitted to the Revisional Authority. The Revisional Authority will pass a fresh order on merits, after giving the petitioner an opportunity to present his case.
19. The writ petition is disposed of in the aforesaid terms.
(RAJIV SHAKDHER) JUDGE (TARA VITASTA GANJU)
JUDGE SEPTEMBER 22, 2022 / tr