Andhra HC (Pre-Telangana)
M/S Shyam Ferro Alloys Ltd., Rep. By Its G ... vs The Assistant Commissioner Of Customs ... on 1 August, 2016
Author: Anis
Bench: Anis
HONBLE SRI JUSTICE V.RAMASUBRAMANIAN AND HONBLE MRS JUSTICE ANIS
Central Excise Appeal No.115 of 2015
01-8-2016
M/s Shyam Ferro Alloys Ltd., Rep. by its G M Accounts and Taxation, Sri Arun
Kumar Agarwal Appellant
The Assistant Commissioner of Customs (APPg), Customs House, Port Area,
Visakhapatnam-530 035; and 2 others Respondents
Counsel for the Petitioner:Sri Mohd. Shafiq, representing
Sri T.Vinod Kumar
Counsel for Respondents: Sri M.V.J.K. Kumar,
Senior Standing Counsel.
<Gist:
>Head Note:
? Cases referred:
1. 2015 (322) E.L.T. 63 (All.)
2. 2015 (39) S.T.R. 812 (Mad.)
3. 2012 (279) E.L.T. 353 (Bom.)
4. 2015 (325) E.L.T. 313 (Bom.)
5. 2011 (271) E.L.T. 518 (P & H)
6. 2014 (300) E.L.T. 496 (All.)
7. 2015 (37) S.T.R. 673 (Ori.)
HONBLE SRI JUSTICE V.RAMASUBRAMANIAN
AND
HONBLE MRS JUSTICE ANIS
Central Excise Appeal No.115 of 2015
Judgment:
This appeal by the assessee under Section 130 of the
Customs Act, 1962, raises the following substantial questions of
law:
(1) Whether the impugned order failed to see the fact that
speed post is not one of the authorized mode of services
u/S.153 and thus the impugned order is a nullity?
(2) Whether proper service of order under
Section 153 of the Customs Act is condition precedent for
order to be considered a valid order?
(3) Whether the period of limitation starts from the
date of proper/valid service of the order-in-original?
(4) Whether both the authorities, including CESTAT-
Bangalore, are justified in their conclusion that the appeal
is barred by limitation overlooking, the fact that the appeal
was filed within the prescribed period of limitation if one
reckons from the date of knowledge of the order? and
(5) Whether the order-in-original levying duty does
not suffer vice of illegality and gross violation of principle of
natural justice, inasmuch as the same suffers from the vice
of pre-determination?
2. Heard Mr. Mohd. Shafiq, representing Sri T.Vinod Kumar,
learned counsel for the appellant and Sri M.V.J.K. Kumar, learned
Senior Standing Counsel for the respondents.
3. The appellant imported about 7480 metric tonnes of
Manganese Ore from Australia under a Bill of Entry dated
10-10-2011 through Visakhapatnam Port. The material was
provisionally assessed under Section 18(1) of the Customs Act,
1962. The appellant claimed the benefit of exemption under
Notification No.04/2006-CE, dated 01-3-2006. The said
Notification exempted Ores from payment of Counter Vailing
Duty (CVD), provided the imported material fell under Chapter
Heads 2601 to 2617 of the Customs Tariff Act, 1975.
4. On 14-8-2012, a notice was issued to the appellant calling
upon them to show cause as to why a demand to the tune of
Rs.1,07,50,083/- should not be made towards differential duty,
on the ground that what was imported by the appellant was
a Manganese Concentrate and not Manganese Ore. In other
words, the Adjudicating Authority took a stand that the material
imported was not covered by the exemption notification.
5. The appellant filed their objections to the show cause
notice, on 22-8-2012. It appears that after considering the
objections, an Order-in-Original was passed on 22-12-2012.
It appears that the same was also sent by Speed Post and the
same was received by the appellant on 25-12-2012.
6. However, claiming that they acquired knowledge of the
passing of the order of adjudication only on 12-12-2013, when
they received a mail from Clearing House Agent, about a demand
made on them, the appellant filed a statutory appeal before the
Commissioner (Appeals). By an Order-in-Appeal dated 15-4-2014,
the Commissioner dismissed the appeal on the ground that the
appeal was barred by time. As against the said order, the
appellant filed an appeal before the Customs, Excise and Service
Tax Appellate Tribunal (CESTAT), South Zonal Bench, Bangalore.
The Tribunal dismissed the appeal on the ground that the
Commissioner (Appeals) had no power to condone the delay beyond
30 days and that the service of the copy of the Order-in-Original,
by speed post was a valid mode of service under Section 153 of the
Customs Act, 1962. Therefore, the appellant is before us.
7. Despite the fact that the appellant has raised about five
questions of law, which we have extracted above, the only question
of law that arises for consideration is as follows:
Whether the service of a copy of the order by Speed Post,
would constitute valid service under Section 153(a) of the
Customs Act, 1962, or not?
8. Section 153 of the Customs Act, 1962, reads as follows:
153. Service of order, decision, etc.Any order or
decision passed or any summons or notice issued under
this Act, shall be served,--
(a) by tendering the order, decision, summons or notice or
sending it by registered post or by such courier as may
be approved by the Commissioner of Customs;
(b) if the order, decision, summons of notice cannot be
served in the manner provided in clause (a), by affixing
it on the notice board of the customs house.
9. It appears that four different High Courts have taken the
view that so long as the words Speed Post are not used in
Section 153(a) of the Customs Act, 1962, when a similar
enactment uses the expression Speed Post under Section 37(C) of
the Central Excise Act, 1944, the service of any notice or order
through Speed Post under the Customs Act, 1962, cannot be
construed as a valid service.
10. It is true that Section 37(C)(1)(a) of the Central Excise
Act, 1944, uses the expression Speed Post. This provision in the
Central Excise Act recognizes three different modes of service,
namely, (a) registered post with acknowledgment due, (b) speed
post with proof of delivery and (c) service through courier approved
by the Central Board.
11. In comparison, Section 153(a) of the Customs Act, 1962,
makes a mention only about two different methods of service,
namely, (1) registered post and (2) such courier as may be
approved by the Commissioner of Customs.
12. Therefore, on the basis of the difference in the language
employed between Section 37(C)(1)(a) of the Central Excise Act,
1944 and Section 153(a) of the Customs Act, 1962, a learned
Judge of Allahabad High Court held in SUPER HOUSE LTD. v.
UNION OF INDIA that there was a failure on the part of the
Department to comply with the requirements of Section 153 of the
Customs Act, 1962, when they sent the order only by Speed Post.
A similar view was taken by a Division Bench of the Madras High
Court in PREMIER GARMENT PROCESSING v. CESTAT,
CHENNAI , holding that the service of order through Speed Post, is
not one of the recognized modes under Section 153(a) of the
Customs Act, though the same is recognized by the Central Excise
Act. A Division Bench of the Bombay High Court also took
a similar view in AMIDEV AGRO CARE PVT. LTD. v. UNION OF
INDIA , where they distinguished a judgment of the Punjab and
Haryana High Court in Commissioner of Central Excise v.
Mohan Bottling Company (P) Ltd. [2010 (255) E.L.T. 321 (P&H)],
which was a case that arose under Section 37(C) of the Central
Excise Act, 1944.
13. Another Bench of the Bombay High Court, in NEW
DRUG & CHEMICAL CO. v. UNION OF INDIA , followed the ratio
laid down in AMIDEV AGRO CARE PVT. LTD. (3 supra). Even the
Punjab and Haryana High Court took a similar view in
COMMISSIONER OF C. EX., LUDHIANA v. BEST DYEING , while
considering a case arising under Section 35(C) of the Central
Excise Act, 1944. However, one Division Bench of the Allahabad
High Court, in MIRZAPUR ELECTRICAL INDUSTRIES LTD. v.
COMMR. OF C. EX., ALLAHABAD , took the view that registered
post and speed post are the same methods of service and that the
object of sending the post by registered post is to keep a record.
The same object is served by sending an article by speed post
through the same agency. Therefore, the Division Bench of the
Allahabad High Court struck a different note in the said decision.
14. The learned Senior Standing Counsel for the Department
brought to our notice, a decision of the High Court of Orissa in
JAY BALAJI JYOTI STEELS LTD. v. CESTAT, KOLKATA ,
wherein the Division Bench of the Orissa High Court expressed its
inability to follow the decision of the Bombay High Court in
AMIDEV AGRO CARE PVT. LTD. (3 supra) and held that the
service of an order or notice through speed post serves the very
same purpose. This judgment of the Orissa High Court, was taken
on appeal by the assessee to the Supreme Court in SLP (Civil)
No.16516/2015. But the Supreme Court refused to interfere with
the order and dismissed the Special Leave Petition on 14-9-2015.
15. We have carefully considered every one of the decisions
relied on by the learned counsel for the appellant. In the decision
of the learned single Judge of the Allahabad High Court in SUPER
HOUSE LTD. (1 supra), there is no discussion as to how the speed
post is different from a registered post. In any case, the decision of
the Division Bench of the Allahabad High Court, in MIRZAPUR
ELECTRICAL INDUSTRIES LTD. (6 supra) should be taken to
have overruled impliedly, decision of the single Judge in SUPER
HOUSE LTD. (1 supra). Therefore, the same is not of any
assistance to the appellant.
16. Insofar as the decision of the Madras High Court in
PREMIER GARMENT PROCESSING (2 supra) is concerned,
it is seen from paragraph 11 of the order that the Court was
carried away by one important fact, namely, that there was no
proof filed by the Department to support the delivery of the order
upon the assessee. There was proof for having dispatched the
order by speed post, but the Court found no proof having been
filed to support delivery. Therefore, the decision rendered by the
Madras High Court, appears to have turned partly on facts and
partly on law and hence it cannot be taken to be an authoritative
pronouncement of the law on the point.
17. AMIDEV AGRO CARE PVT. LTD. (3 supra), which is
a decision of the Bombay High Court, arose under Section 37(C) of
the Central Excise Act, 1944. In that case, the provisions of
Section 37(C)(1)(a) did not contain the words Speed Post before
the amendment. After the amendment, the words were specifically
incorporated. Therefore, the Bombay High Court was compelled to
come to the conclusion that when the Parliament sought to make
an amendment to the existing law on the realization that there was
something missing, any interpretation given by the Court should
also be in tune with such change of law.
18. The decision of the Bombay High Court in NEW DRUG &
CHEMICAL CO. (4 supra) simply followed the decision in AMIDEV
AGRO CARE PVT. LTD. (3 supra) and hence it cannot be accepted
for the very same reason as we have stated in respect of AMIDEV
AGRO CARE PVT. LTD. (3 supra).
19. Similarly, the decision of the Punjab and Haryana High
Court in BEST DYEING (5 supra) cannot go to the rescue of the
appellant inasmuch as it arose under Section 35(C) of the Central
Excise Act, 1944. Since Section 37(C) contained a different tune
than the one found in Section 35(C), the Punjab and Haryana High
Court took the view that it did in BEST DYEING (5 supra).
20. As a matter of fact, the Orissa High Court alone appears
to have gone into the question as to what the words Registered
Post appearing in Section 153(a) of the Customs Act, 1962 would
connote. The Orissa High Court had referred to Section 28 of the
Indian Post Office Act, 1898, which provides for registration of
postal articles. The Orissa High Court further pointed out that
Speed Post service was introduced, by way of an amendment to the
Indian Post Office Rules, 1933, by a Gazette Notification issued by
the Ministry of Communications (Department of Posts),
Government of India, dated 24-7-1986. After taking into account
Section 28 of the Indian Post Office Act, 1898 and Rule 66B of the
Indian Post Office Rules, 1933, the Orissa High Court came to the
conclusion that the Speed Post is nothing but another method of
registering an article through the Postal Department under Section
28 of the Indian Post Office Act, 1898. Therefore, the only decision
out of all the decisions which we have referred to above, which can
be said to have laid down a ratio decidendi is that of Orissa High
Court. With respect, we agree with the views expressed by the
Orissa High Court.
21. As rightly pointed out by the Orissa High Court, a person
who seeks to send an article by Speed Post, does the samething as
a person who seeks to register an article does. But the
transmission of the article is to be on a fast track in speed post
services. There is also a tracking system provided by speed post.
In other words, a registered post can be compared to an economy
travel while a service through speed post can be compared to
business class. Other than that, there is no distinction between
two. In our considered view, the expression registered post
appearing in Section 153(a) of the Customs Act, 1962, have to be
construed as including within its purview, the method of
registering an article, to be taken by speed post. Therefore, the
question of law is answered against the appellant and the appeal is
dismissed. The miscellaneous petitions, if any, pending in this
appeal shall stand closed. No costs.
___________________________
V.RAMASUBRAMANIAN, J.
__________________________ ANIS, J.
01st August, 2016