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Surjit Kaur and Two ors. Vs. Collector of Central Excise and - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1985)(5)LC2384Tri(Delhi)
AppellantSurjit Kaur and Two ors.
RespondentCollector of Central Excise and
.....after the expiry of the statutory period of three months.2. aggrieved by this rejection of the appeal, kashmira singh filed revision petition to the central government, which has since been received by this tribunal to be treated and disposed of as an appeal.after it was registered as such and notice of hearing issued, an application was moved by smt. surjit kaur, smt. kulbir kaur and smt.inderbir kaur, stating to be the wife and daughters, respectively, of kashmira singh, to be substituted as appellants as shri kashmira singh had since died. this application was allowed by order dated 1-6-1984 after notice to the respondent. according to this application, kashmira singh, stated to be resident of 84, kenedy avenue, amritsar, had expired on 25-10-1983, which fact was evidenced by copy.....
1. Shri Kashmira Singh, son of Shri Mahain Singh (since dead) had filed an appeal to the Central Board of Excise and Customs (hereinafter referred to as the Board) against the adjudication order passed by Collector of Customs, Chandigarh. This appeal was dismissed by the Board by order dated 27-4-1981, as being barred by time, on the ground that the appeal had been received in Board's office on 12-6-1980 whereas the Collector's order was despatched on 20-3-1979; further observing that, although this notice was received back undelivered but, thereafter, a copy of the same was pasted on the door of the house of the appellant Kashmira Singh on 14-5-1979 and, so, taking that to be the date of service, the appeal was liable to dismissal having been filed after the expiry of the statutory period of three months.

2. Aggrieved by this rejection of the appeal, Kashmira Singh filed revision petition to the Central Government, which has since been received by this Tribunal to be treated and disposed of as an appeal.

After it was registered as such and notice of hearing issued, an application was moved by Smt. Surjit Kaur, Smt. Kulbir Kaur and Smt.

Inderbir Kaur, stating to be the wife and daughters, respectively, of Kashmira Singh, to be substituted as appellants as Shri Kashmira Singh had since died. This application was allowed by order dated 1-6-1984 after notice to the respondent. According to this application, Kashmira Singh, stated to be resident of 84, Kenedy Avenue, Amritsar, had expired on 25-10-1983, which fact was evidenced by copy of the death certificate. The appeal has, thus, been heard finally, with the widow and daughters of Kashmira Singh (deceased) having been substituted as appellants, and who put in appearance through Shri Herjinder Singh, Advocate.

3. The rejection of Shri Kashmira Singh's appeal, against the Collector's order, by the Board, as already stated, was on the ground of being time-barred. It is pleaded in the revision petition, now appeal, that the Order-in-Original was never served on Kashmira Singh personally and that he came to know of the same only on 30-5-1980 when he had gone to Chandigarh to the Office of the Collector to attend some other hearing and, further that he had no knowledge at all of the existence of this order before that date. It was pleaded that the Board had erred in taking into consideration the service by affixation because that was at an address which, according to the reports, he had left, and no notice had ever been addressed to his actual residence where he had shifted. He further asserted that even the adjudication proceedings had been conducted ex pane and without any service of show cause notice on him with the result that he had, at no stage, any knowledge of any such proceedings against him, and consequently, even no inference can be drawn against him.

4. We have examined the issue from the angle of service of Order-in-original on deceased Kashmira Singh because the decision of this appeal hinges on this determination only. We find that the proceedings had been initiated against Kashmira Singh and some others, as a sequel to the recovery of some gold by apprehension of three persons; namely, Sarvashri Surjit Singh, Amrik Singh and Pargat Singh.

On examination, one of these persons; namely, Surjit Singh, had named Sohan Singh and Gurmej Singh as the persons for whom they had been carrying gold and currency recovered from them. It was this Gurmej Singh who allegedly revealed the name of Kashmira Singh as the person at the back of this smuggling of gold. That Gurmej Singh had given his residence as of Village Malluwal. It appears that since Gurmej Singh had stated that Kashmira Singh was his brother's son and given his residence as of Village Malluwal, the Customs authorities proceeded on the assumption that Kashmira Singh's residence was also of Village Malluwal. It is to be noted, however, that at no stage Kashmira Singh was examined or his statement recorded and, at no stage, he had personally given his address as of Village Malluwal.

5. Shri Kashmira Singh's plea in the appeal is that, during the days when these show cause notices were allegedly issued, he was in custody, having been arrested on 10-8-1976, and that, up to 27-9-1976, he remained in police custody and, thereafter, was sent to jail and had been, in-between, put under detention, under the provisions of Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activity Act, 1974 (COFEPOSA for short), and remained so from 10-8-1976 to 9-8-1977, and that, it was only on 10-8-1977 that he was released from jail. He asserted that, at no stage, show cause notice was ever tendered to him nor had he ever refused to accept the same and, at no stage, he came to know of the proceedings against him, much less of adjudication order, nor was any copy of the same served on him, nor conveyed to him, and that, it was only when he went to the Office of the Collectorate at Chandigarh in connection with hearing of some other matter which was on 30-5-1980, that he came to know of this order and, immediately, he took steps to file an appeal to the Board, which he did on 12-6-1980.

6. We have taken great pains to ascertain the truth of these pleas made by Shri Kashmira Singh, and the effect thereof on the proceedings. We find that it is not denied that Kashmira Singh was in custody, under COFEPOSA, during the period proceedings, by was of show cause notice, were being taken up. The papers filed on behalf of the respondent reveal that on 25-12-1976, a registered envelope was sent to Kashmira Singh, described as resident of Village Malluwal, District Amritsar, care of the Officer-in-Charge Jail, Nabha. It is respondent's case that this registered post had contained the notice to show cause and that, since it was received back with the endorsement of 'addressee having refused to take Service', the authorities proceeded after taking recourse to the provisions of Section 153(b) of the Customs Act.

7. It is further alleged on behalf of the respondent that, as there was no reply to the show cause notice; on the basis of the available material, adjudication proceedings along with others, were concluded against Kashmira Singh also, which was by order dated 20-3-1979; and that efforts to have this order communicated to Kashmira Singh were made and, when it was reported that he had left residence of the village, a copy thereof was affixed, in the presence of witnesses, at the door of his house in Village Malluwal on 14-5-1979.

8. The Board seems to have proceeded on the assumption that knowledge of the adjudication order must be presumed against Kashmira Singh from the date the copy of the order was pasted on the door of his house and, taking that to be the date as on 14-5-1979, the appeal filed on 12-6-1980 was treated to be beyond the statutory period of limitation and, thus, liable to dismissal as barred by time. In the setting of facts narrated above, we have no hesitation in saying that the Board adopted a manifestly erroneous approach to the whole proceedings. It is to be noted that, since Kashmira Singh's statement was never recorded during investigation and he, himself had never given his address nor he had any opportunity to convey the same to the authorities, the Board went wrong in observing that, in the absence of any change of address having been conveyed by Kashmira Singh, the service by affixation at his house in Village Malluwal was good service and that, that having taken place on 14-5-1979, the appeal filed on 12-6-1980 was barred by time and that his plea, that orders were never served on him, was not tenable.

9. This inference drawn by the Board, in our view, is totally unsustainable for the reasons that Kashmira Singh having never been served with show cause notice nor having ever given personally his own address, there was no question of his having had to convey change of address or sending a request to the authorities that adjudication order be served on him on a different address when, in the first instance, he was not aware of the adjudication proceedings and, secondly, he had never given "Malluwal' village address to be his address and it is apparent that, all through, the Customs authorities proceeded on assumption that since Gurmej Singh-an uncle of Kashmira Singh-had given his address as of Village Malluwal, Kashmira Singh could also be taken to be resident of the said village. That presumption has been repudiated because it is apparent on record that Customs authorities had full knowledge that Kashmira Singh was in custody in jail when the show cause notice was being issued, and they had further knowledge that his current residence was Amritsar, which fact is apparent from the endorsement on the registered post which was received back by the Customs authorities (page 20 of the Respondent's Book) undelivered with the endorsement, dated 26-3-1979, that the addressee Kashmira Singh was since residing in Amritsar and that he has left residence of Village Malluwal. It is also mentioned in the Collector's report bearing the date 9-11-1984, which the Departmental Representative Shri M.L. Kapoor placed on the file, that after this registered post was received back undelivered, a copy of the order was sent to the Assistant Collector of Customs, Amritsar, for personal delivery. All that he has stated is that this service could not be effected but no report of the Assistant Collector has been filed as to reveal the reasons, for which the service remained uneffected. It is pertinent to note that respondent has filed copies of all relevant registered covers alleged to have been refused or remained undelivered, and also reports of alleged service by affixation, but no explanation, as to why Assistant Collector's report that service of adjudication order could not be effected on Kashmira Singh in Amritsar, was not filed. It can be safely inferred that that report is adverse to the respondent and, for that reason, it seems to have been kept back.

10. The situation that emerges is that Kashmira Singh had no knowledge of adjudication proceedings, much less of adjudication order which was not served on him when sent on his village address but was received back undelivered with clear endorsement that he was not residing in the village but was in Amritsar. It was not served at the Amritsar address for reasons unknown, but which fact is established from the Collector's report dated 9-11-1984. In face of that, the service by affixation at the village house on 14-5-1979 was a futile exercise and reveals a mechanical approach on behalf of Customs authorities because, when there was a clear report on 26-3-1979 on the registered envelope that Kashmira Singh had left residence of Village Malluwal and shifted to Amritsar, the attempt at service by pasting at the house in Village Malluwal was meaningless. No valid service of adjudication order, therefore, can be said to have taken place on the basis of this report on 14-5-1979 on which the Board relied. The Board, we have already discussed, was in error in placing the burden on the appellant Kashmira Singh for want of service or for drawing an inference adverse to him, on the ground that he had not intimated change of address because he had, at no stage, had any opportunity of giving any address. As against that, there was categorical statement by Kashmira Singh that he had acquired knowledge of this adjudication order on 30-5-1980 when he went to the Chandigarh Collectorate for some other hearing. From the fact that he had immediately rushed to file an appeal-and there is no reason why he should not have filed the appeal earlier-, we are satisfied that the Board had gone wrong in treating the appeal as barred by time. The order, on the other hand, is based on erroneous assumption. This appeal has to succeed so far as Board's order, dismissing Kashmira Singh's appeal as time-barred, is concerned.

11. However, in view of the peculiar circumstances of the case that Kashmira Singh is now dead, and there was, at no stage, service of show cause notice on him, and the entire adjudication proceedings were ex pane, we have given our earnest thought to the matter and come to the conclusion that the entire proceedings have to be quashed as there is nothing on record to go back to. The proceedings can, obviously, be not remitted to the Board now for decision on merits, because the Board no longer exercises appellate powers. The adjudication proceedings, in the absence of show cause notice, are not sustainable. We have already highlighted the facts which lead to the inference that Kashmira Singh's plea, that he was not served with the show cause notice at any stage, is quite credible and, at least, it is a matter where benefit of doubt has to be given. At the cost of repetition, we may recapitulate that the actual apprehension was of three persons; namely, S/Shri Surjit Singh, Amrik Singh and Pargat Singh. One of them; namely, Surjit Singh, had named Sohan Singh and Gurmej Singh to be the persons who had passed on the gold and currency to them and the said Gurmej Singh had further named Kashmira Singh.

12. Apart from the fact, that a copy of the Tribunal order has been placed on record whereby appeal of said Sohan Singh has been allowed; otherwise also, we find that it was only Sohan Singh's companion Gurmej Singh who had allegedly given address of Kashmira Singh and implicated him. There is no record of an independent investigation against Kashmira Singh. The notice to show cause sent to him, when he was admittedly in jail custody, C/o the Officer-in-Charge, Nabha Jail, was received back, only with the report of alleged refusal. Kashmira Singh has challenged that report of refusal to be incorrect. The learned Counsel, appearing for the present appellants, have strenuously argued that conditions of detention in jail were such that no postman could have directly tendered any post to a detenu, and that had to be transmitted through the Superintendent of Jail or Officer-in-Charge Jail. This has not been effectively repudiated because reports, received from the Collector pursuant to our directions, only reveal that service, if effected, is entered in jail records, and not otherwise, but there is no answer to the plea that under conditions of detention, no mail could have been directly presented to a detenu or an inmate in jail.

13. Shri Herjinder Singh, Advocate produced before us the Punjab Detenues (Conditions of Detention) Order, 1974, and placed relevant extract by means of an application dated 11-2-1985 on record; the same can be reproduced as below : "No letter, newspaper or other communication shall be transmitted to or from any detenu except through the Superintendent or such other officer as the State Government may, by general or special order, designate in this behalf." 14. It is, thus, abundantly clear from a bare reading of this provision that all communications-whether by post or otherwise-have to be transmitted to a detenu only through the Superintendent or such other officer as may be designated in this behalf. This endorses the appellant's contention that this registered cover could not have been directly presented to him and it had to be through Superintendent, with the necessary implication that his reported refusal ought to have borne endorsement of the Superintendent by way of certification. We are inclined to accept this contention because reading the 'Conditions of Detention' and provisions of 'Maintenance of Internal Security' Act (also placed on record), the scheme of things appears to be that no detenu could be directly approached in the matter of delivery of post, etc. The report of alleged refusal, contained on this registered cover, and on the basis of which the adjudication ' proceedings against Kashmira Singh were conducted ex parte, suffers from lack of requisite satisfaction of necessary conditions, under Section 27 of the General Clauses Act, an inference of service can be drawn only if the registered post is 'properly addressed'.

15. On the given facts, we do not think that presumption of service of show cause notice, so as to justify recourse to Section 153(b) of the Customs Act, could be raised. It could have been a case for remand for proceeding de novo from the stage of service of show cause notice but that course is not now open; Kashmira Singh having since died.

16. On the peculiar circumstances of this case, the entire proceedings have, therefore, to be quashed. Kashmira Singh had prayed to this effect even in the Revision Petition now being disposed of in appeal.

It is, thus, not any new factor which has cropped in during proceedings before us but was the contention right from the beginning. As a result, we accept the appeal and set aside the order of the Board dismissing the appeal, as also quash the adjudication order.

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