Address mentioned on envelope is Dasha, Ghageabad instead of Ghaziabad - as there is no postal mark 'refused', it cannot be said that applicant refused said communication - COD application allowed
AN Order-in-Original was passed by the Commissioner of Customs (Export Promotion), Mumbai on 24.11.2009.
Against this order, the applicant has filed a Stay application and an appeal before the CESTAT. The applicant also seeks a condonation of delay of 1119 days on the ground that they had neither received the notice for personal hearing nor the adjudication order. It is submitted that it is only when the applicant received recovery notice that they came to know that the adjudication order is passed and thereafter they immediately filed appeal after obtaining the order.
The Bench had directed the Revenue to produce evidence regarding service of adjudication order on the applicant. The Revenue produced the original envelope under which the order had been sent to the applicant and which has been received back. In the covering letter dt. 23.8.2013, the Assistant Commissioner of Customs stated that notice was received back with the postal remark “Refused”.
The Bench took a closer examination of the "envelope" produced by the Revenue and found that there is no postal remark “refused”. Moreover, notice was sent at the address of the factory as well as of the Head Office and thereafter address of the Head Office was scored and the address mentioned on the envelope is Dasha, Ghageabad instead of Ghaziabad.
The CESTAT observed that since there was no refusal by the applicant, therefore, there is merit in the contention of the applicant. Accordingly, the delay in fling the appeal was condoned.
As for the appeal, the duty demand is confirmed on the ground that applicant made import of certain goods under the advance licence without payment of duty and during investigation it was found that the advance licence was procured by submitting fake documents by mis-declaring the quantity of the exported goods.
The applicant submitted that they had procured the advance licence from the market on consideration and there was no mis-declaration on their part and hence the demand is not sustainable.
The Revenue representative drew the notice of the Bench to an order dated 13/10/2011 passed in the case of Bajaj Exports covering a similar issue and wherein the Bench had ordered pre-deposit of the amount of duty.
Holding that the advance licence under which the goods were imported was obtained by submitting forged documents and pre-deposit could not be waived, the Bench directed the applicant to deposit the duty and interest for obtaining stay.