Brajesh Kumar Dubey v. Commissioner of Customs & Anr

ORDER

25.11.2011 The present appeal under Section 130 of the Customs Act, 1962 is directed against the order dated 27^^ May, 2011 passed by the Customs, Excise and Service Tax Appellate Tribunal,New Delhi (tribunal, for short) dismissingthe appeal of the appellanton the ground of limitation.

¶2Learned counsel for the appellant submits that there has been non-compliance of Section 153 of the Act and the order passed by the Commissionerwas served on the appellanton 14^*^ December, 2009 and, therefore,the appealpreferredbeforetheTribunalwaswithinlimitation.

¶3The order passed by the Commissionerof Customs Air Cargo, New Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Delhi was impugnedbefore the tribunalis dated 14^*^ October, 1999. The appeal was preferred against this order after more than 10 years. The allegationagainst the appellant is that a consignmentof computer parts importedby SmridhiEnterpriseswas checked,afterit had been clearedand issued out charge and was found to be containing84,000 pieces ofwatch movements collectivelyvalued at Rs.1,05,00,000/-,instead of computer cabinetwith powersupplyas was declarecl. SmridhiEnterpriseswas found to be non-existingat the declaredaddressand the appellantwas the person behind/involvedwith the import.

¶4Section 153 of the Customs Act providesthat any order or decision passedunder the Act shall be servedby tenderingthe order or decisionby sending it by registered post to the person for whom it is intended and in casethe order or decisioncannotbe servedin a mannerprovidedby affixing it on the notice board of Customs House. The learned counsel for the appellant has submitted that the original assessment order file of the departmentis not traceable. This appearsto be the reason why the appellant has taken up the said plea. The appellanthad participated in the proceedings and it cannot be conceived and accepted that he did not, for 10 years, know the outcome or order passed by the authority.The Tribunal in this connection has referred to attempts made by the Revenue to recover penalty of Rs.l5 lacs afterthe orderdated W"" October,1999 was passed. The Tribunalhas referredto the file notingsfrom 2004 onwardswhen officersofthe customs departmenthad visitedthe appellantat his residenceat E-27, New Multan Nagar,New Delhito make recoveryoffine ofRs.l5 lacs. Correspondence/ letters were also issued to the appellantfrom 2004 onwards at his correct residentialaddress.In view ofthe above circumstances,the tribunalcannot be said to have committed any error in not exercising its discretionto condone delay of 10 years in filing the appeal. The appellant was deliberatelysittingon the edge and markingtime and only when tough and harshstepsfor recoveryweretakendidhe belatedlyapproachthe tribunal.

¶5Inthesecircumstancesand inviewofthe findingsofthe Tribunal,we do not think that any substantial question of law for consideration arises in this appealand the same is accordinglydismissed. c 7 "it SANJIV KHANNA, J —f r.v.'easwar, j NOVEMBER 25,2011 mm

i IN THE HIGH COURT OF DELHI AT NEW DELHI + CUSAA 48/2011 BRAJESHKUMARDUBEY Appellant Through: Ms. Sangita Bhayana, Adv. versus I COMMISSIONER OF CUSTOMS & ANR Respondents Through: Mr. Shailesh Tiwari and Ms. Sonia Sharma, Advs. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE R.V.EASWAR %