Customs, Excise and Gold Tribunal - Delhi
Collector Of Customs vs Hicks Thermometers (India) Ltd. on 25 March, 1988
Equivalent citations: 1988(42)ELT55(TRI-DEL)
ORDER V.T. Raghavachari, Member (J)
1. The less charge demand confirmed by the Assistant Collector under his order dated 27-6-1983 was set aside by the Collector (Appeals) under his order dated 31-3-1984 on the ground the demand was not served within the period specified in Section 28(i) of the Customs Act. This appeal by the Collector of Customs, Bombay is against the said order.
2. We have heard Shri Chakraborthy for the department. Shri D.N. Mehta, Advocate for the respondents has filed his written arguments and indicated therein that he would not be appearing today. We have perused the same and the necessary papers.
3. According to the respondents payment of duty was on 29-6-1981 and the less charge demand (under notice dated 29-12-1981) was served on them on 4-1-1982 and hence the demand was barred under Section 28 of the Customs Act. Shri Chakraborthy submits that the payment of duty was not on 29-6-1981 but on 1-7-1981.
4. As far as service of the demand is concerned the notice therefor is dated 29-12-1981. The Collector (Appeals) has pointed out that the said notice could not have been served in any event on 29-12-1981 itself and since date of payment of duty was 29-6-1981 the demand should have been served only after the expiry of the six months period. Shri Chakraborthy submits that this presumption was not correct. When it was pointed out to Shri Chakraborthy that the contention of the respondents has throughout been that the demand was received by them on 4-1-1982 and there is nothing said in the appeal before us to controvert this, his submission was that in so far as the Collector (Appeals) had proceeded on a presumption only, as noted above, the Collector in this appeal has not chosen to go into the date of actual service.
5. Regarding the date of service the respondents had produced before the Collector (Appeals) the entry in their Inward Register and have filed before us a photostat copy of the demand containing therein their seal with the date and, evidently, the number assigned in the Inward Register. It was open to the Appellant-Collector to have produced proof of the actual date of service, either by producing the postal acknowledgement, if available, or a certificate from the postal authorities regarding the date of service. In the absence of either we see no reason not to accept this evidence for the respondents that they had received the notice on 4-1-1982 only. That would mean that even if the date of payment of duty was 1-7-1981 (as claimed for the department) and not 29-6-1981 (as claimed by the respondents) the demand was served beyond the six months period mentioned under Section 28 of the Customs Act.
6. In the above view we dismiss this appeal.