Whether service of order in original through speed post is proper ?

PJ/Case Law/2013-14/1828

Case:- OPAL LEATHERS PVT LTD Vs COMMISSIONER OF CUSTOMS (EXPORT), MUMBAI

Citation:- 2013-TIOL-1432-CESTAT-MUM

Brief facts:- – Service of Order-in-Original through Speed Post is not a proper service and therefore it has to be presumed that the order was not served on the appellants. When the appellant got a recovery notice they came to know about the order in original, applied for the same and filed an appeal within 60 days of getting a copy and hence appeal is to be considered as filed within time. O-in-a was set aside. Moreover, since adjudication order is an ex-parte order, matter remanded for decision on merits and thus the appeal was allowed by way of remand.

Appellant’s contention:-The contention of appellant is that Order-in- Original was passed on 20.1.2009 and the same was issued on 4.3.2009 through Speed Post. But they did not receive the said order as they had shifted their business premises from the address which is mentioned in the Order-in-Original. They came to know about the passing of the Order-in-Original when they received the recovery notice in 2011 and immediately they approached for the issuance of Order-in-Original and when they received the Order-in-Original, within 60 days they filed appeal before the Commissioner (Appeals). But the Commissioner (Appeals) without verifying whether the service of the Order-in-Original was effected or not, passed the order treating the appeal is barred by limitation which is not correct decision in the eyes of law. The learned Counsel submitted that service through speed post is not proper service as held by this Tribunal as well as various High Courts. Therefore, the impugned order dismissing the appeal treating as time barred is to be set aside. Further it was submitted that the Order-in-Original is an ex-parte order where they were not heard by the adjudicating authority. Therefore, the matter be remanded back to the original adjudicating authority for fresh consideration.

Respondent’s contention:- The respondent reiterated the findings of the lower authorities.

Reason of judgment:-The bench agreed to the fact that the Order-in-Original was passed on 20.1.2009 and issued to the appellants on 4.3.2009 through Speed Post and also admitted the fact that service through Speed Post is not a proper service. Therefore, it was to be presumed that the Order-in-Original was not served on the appellants. When the Order-in-Original was not served on the appellants and they came to know about the passing of the Order-in-Original after getting recovery notice and applied for supply of Order-in-Original and immediately on receiving the Order-in-Original they filed appeal within 60 days, therefore, they filed the appeal within time. Therefore, the impugned order was set aside. Further, the bench fond that the adjudication order itself was an ex-parte one. Therefore, it could be proper in the interest of justice to remand the matter to the original adjudicating authority to consider the contention of the appellants on merits. Therefore, it allowed the appeal by way of remand to the adjudicating authority with a direction to the appellants to appear before the adjudicating authority within 30 days to fix the date of final hearing, from the date of communication of this order.

Decision:- Stay application was disposed off.

Comment:- The analogy drawn from this case is that the service through Speed Post is not a proper service and if the order is not received by assessee due to any reason it shall be presumed that the Order-in-Original was not served on the assessee. Hence, the delay in filing the appeal was condoned and as the order in original was decided ex-parte, the appeal was also allowed by way of remand.

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PJ/Case Law/2013-14/1828

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