Mohammed Saleem Pannikkandathil v. Commissioner of Customs, Calicut

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **THURSDAY, THE 20TH DAY OF DECEMBER 2018 / 29TH AGRAHAYANA, 1940** **Cus. Appeal. No.2 of 2008** **AGAINST THE ORDER IN APPEAL NO.442/2005 OF THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, SOUTH ZONEAL BENCH, CHENNAI DATED 04-04-2007** **APPELLANT/APPELLANT:** **SRI.MOHAMMED SALEEM PANNIKKANDATHIL HOUSE, PAN BAZAAR P.O., TIRUR, MALAPPURAM, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER P.A. ABDUL RAZAK.** **BY ADVS. SRI.E.K.NANDAKUMAR (SR.) M.GOPIKRISHNAN NAMBIAR** ## **RESPONDENT/RESPONDENT:** **THE COMMISSIONER OF CUSTOMS, CALICUT.** **BY ADVS. SREELAL N. WARRIER, SC SRI.P.PARAMESWARAN NAIR, ASGI SRI.THOMAS MATHEW NELLIMOOTTIL, SC** **THIS CUSTOMS APPEAL HAVING BEEN FINALLY HEARD ON 20.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Cus. Appeal. No.2 of 2008 2 ## **JUDGMENT** ## **K. Vinod Chandran, J.** **This second appeal is filed from an order of the Tribunal, which rejected the first appeal as a consequence of rejection of the delay condonation application. We find that the Tribunal has written a detailed order rejecting the appeal on the aspect of condonation of delay. Hence we went through the same carefully and we notice that there is clear abuse of process by the appellant.** **2. First we have to necessarily state the facts. An order in original, as produced at Annexure B, was passed by the Commissioner of Customs, Calicut on 25.05.2001. The order was in pursuance of confiscation of gold made from a third party. The carrier is said to have received the gold from the appellant, who traveled from Dubai to India and who owned up the title of the** Cus. Appeal. No.2 of 2008 3 **goods. The appellant had declared gold carried with him from abroad and paid duty on the same. However the gold recovered was in excess of that declared by the appellant and he was presumed to have brought the contraband into the country, which was not declared at the customs post.** **3. The allegation in brief was that 59 bars of gold were seized from one Mr.Binu Pulakkal by the police. The appellant approached the Police and owned up the title over the gold bars found in the possession of that other person and also took up the responsibility of the same; he having entrusted it to the carrier. The appellant also submitted that the gold bars were imported after proper declaration and payment of duty. On cross- verification with the records of Customs, it was found that the markings did not match and 47 bars were not those declared. Those declared were only 12 gold bars, found in possession of the carrier, borne out by the** Cus. Appeal. No.2 of 2008 4 **markings which matched those declared. Proceedings for confiscation were initiated as against the contraband gold. We are not concerned with the merits, but only briefly noticed the cause of action for more completeness.** **4. The appeal from the original order was filed on 13.12.2005 with an application for condonation of delay of 1662 days. In the affidavit accompanying the appeal memorandum, the appellant had specifically stated that the date of communication of the order was on 27.05.2001 and hence delay occasioned of 1662 days was sought to be condoned. The Tribunal noticed the proceedings in so far as the departmental representative having submitted that the Commissioner's order was served on the party on 31.05.2001, ie. four days after that stated in the affidavit. The Tribunal directed the Department to produce the postal acknowledgment card and adjourned the matter. The Counsel for** Cus. Appeal. No.2 of 2008 5 **the appellant also stated that he would file an application for amendment of the date of communication of the order.** **5. On the next posting date, the appellant filed a fresh affidavit contending that the Tribunal had directed the appellant to correct the factual and typographical mistakes, that was noticed in the earlier affidavit. The averment in the said affidavit produced here, as Annexure C was that the appellant had filed the appeal with only 68 days delay; as computed from the date of knowledge. The earlier date of receipt was sought to be altered on the ground that the appellant came to know of the order only on 07.07.2005, quite contrary to the averments made in the first affidavit. On the altered contention it was argued that the appeal ought to have been filed before 05.10.2005 and there was a delay only of 68 days. There was no explanation offered for retraction of the earlier clear** Cus. Appeal. No.2 of 2008 6 ## **admission of receipt of order on 27.05.2001.** **6. The Tribunal spoke first about the improper filing of the additional affidavit and took umbrage at the appellant's statement as to the Tribunal having directed correction of the dates. According to the Tribunal, there was no such direction. We would not say anything more on that, but affirm the Tribunal's views on both these aspects, especially since we do not find anything to disbelieve the Tribunal as to what transpired on the previous posting date.** **7. The Tribunal despite the improper filing of the affidavit and the technical defects noticed, considered the averments made and found that the facts stated therein were incorrect. The affidavit at Annexure C shows a statement by the appellant that he was first informed of the order when he was granted bail, on 16.11.2004, by the Additional Chief Judicial Magistrate [Economic Offenses] Court, Ernakulam; the matter having** Cus. Appeal. No.2 of 2008 7 **been informed to him by his co-accused. The appellant after obtaining bail is said to have returned to Dubai on 19.11.2004 itself. Hence, even accepting the altered statement made; having known of the order on 16.11.2004, the appellant took no steps to file an appeal therefrom. Be that as it may, the further statement made in the affidavit that he came to know about the order only on 07.07.2005 is a deliberate falsehood as discernible from the conflicting contentions raised in the affidavit itself.** **8. Further, the Department had also stated before the Tribunal that the personal penalty imposed on the appellant of Rupees One lakh was paid by him in the year 2003. The Power of Attorney of the appellant, who filed the affidavit at Annexure C, on his being so instructed, specifically stated that the appellant had not paid up the fine and he was not aware of such an order. There is also an averment** Cus. Appeal. No.2 of 2008 8 **that some of his family members would have paid the amount for reason of the coercive steps taken against their property. If that be so, we cannot comprehend why the appellant was not informed of the same. We cannot but observe that all these conflicting facts were sworn to in an affidavit, when there was yet another affidavit filed by the appellant, wherein it was specifically stated that the order was served on him on 27.05.2001. There was no explanation from the side of the appellant as to why he stated so in his earlier affidavit.** **9. On the acknowledgment produced by the Department, the appellant argued that P.K. Saleem, who acknowledged receipt was not an authorised agent. The submission of the Department was that the appellant's full name is 'Pannikkandathil Mohammed Saleem' and 'P.K.' is the abbreviation of 'Pannikkandathil'. The appellant denied the same by producing his** Cus. Appeal. No.2 of 2008 9 **Passport, which evidenced that he was not in station on 31.05.2001, when the acknowledgment card was signed. The Tribunal then looked at Section 153 of the Customs Act, 1962 [for brevity, 'the Act'], which speaks of service of notice, first by tendering directly to the person or by sending it through registered post. The Tribunal relied on a decision of this Court in** _**Ambali Karthikeyan v. Collector of Customs [2000 (125) ELT 50 (Ker.)]**_ **and two other decisions of the High Courts of Madras and Calcutta to find that service was completed in accordance with the Act since the same was send by registered post. There is no requirement as per the statute to actually ensure receipt by the person against whom the order is passed.** **10. The appellant would rely on** _**Saral Wire Craft Pvt. Ltd. v. Commissioner of Customs, Central Excise and Service Tax [2015 (322) ELT 192 (SC)**_ **, wherein the Hon'ble Supreme Court had** Cus. Appeal. No.2 of 2008 10 **categorically declared that service by personal tender shall only be on an authorised agent. We discern a clear distinction on facts and a clearer non-application of the law declared therein. Therein the adjudication order was served on an employee of the appellant, by personal tender, who, the appellant stated, was a kitchen boy employed on daily wages. The said service was in the manner as prescribed in subclause (a) of Section 37C, ie: by tendering the order to the person for whom it is intended or his authorised agent. In fact, the Hon'ble Supreme Court in paragraph 8 extracted Section 37C and specifically found that** _**'It is not the case of the Department that it simultaneously also dispatched the order to the appellant by registered post with acknowledgment due'(sic).**_ **Hence the decision has no application to the instant case, wherein the order was sent by registered post, which is sufficient service** Cus. Appeal. No.2 of 2008 11 ## **under Section 153 of the Act.** ## **11. The learned Standing Counsel** **appearing for the Department also points out that Section 27 of the General Clauses Act, 1897 also deems service, on the notice being send by registered post. Section 27 indicates that** _**'unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document'**_ **and** _**'unless the contrary is proved, to have been effected, at the time at which the letter would be delivered in the ordinary course of post'.**_ **There is absolutely no contrary evidence adduced by the appellant. In such circumstances, we do not think that there could be any interference caused to the order of the Tribunal.** **12. We are also of the opinion that there was a clear abuse of process of law in so far as** Cus. Appeal. No.2 of 2008 12 **the appellant's Power of Attorney having sworn to an affidavit, which has been shown to be false on the basis of the conflicting statements made in that affidavit itself. The accompanying circumstances also indicate that there was a deliberate attempt to mislead the Tribunal by blatant statements of falsehood. The appellant had also sought to file an appeal from the order of the Tribunal again asserting the averments as stated in the affidavit. We, hence, are of the opinion that exemplary cost has to be imposed on the appellant. We also notice that the appellant had a specific contention before the Tribunal that he was not the person, who deposited the penalty of Rupees One lakh. Hence we quantify the cost to be paid by the appellant at Rupees One lakh, which shall also be recovered from the appellant with interest at the rate as provided in the statute, from the date of filing of the second affidavit, ie. from 15.02.2007. The said** Cus. Appeal. No.2 of 2008 13 ## **amount shall also be recovered along with what is** **due under the order in appeal.** **The above appeal is dismissed. No costs.** **Sd/-** **K. VINOD CHANDRAN** **JUDGE** **Sd/-** **ASHOK MENON JUDGE** **sp/19/12/18** Cus. Appeal. No.2 of 2008 14 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** ## **ANNEXURE A** **TRUE COPY OF THE RECEIPT FOR PAYMENT OF THE DUTY ASSESSED.** **ANNEXURE B** **TRUE COPY OF THE ORDER (ORIGINAL) NO.5/2001 DATED25.05.2001.** **ANNEXURE C** **TRUE COPY OF THE PETITION FILED BY THE APPELLANT FOR CONDONATION OF DELAY, TOGETHER WITH ITS ANNEXURES.** ## **ANNEXURE D** - **TRUE COPY OF THE COPIES OF THE DOCUMENTS FILED BY THE DEPARTMENT IN SUPPORT OF THEIR CONTENTION THAT THE IMPUGNED ORDER HAD IN FACT BEEN SERVED ON THE APPELLANT AS EARLY AS ON 31.05.2001.** ## **ANNEXURE E** **TRUE COPY OF THE FINAL ORDER NO.258/2007 DATED 12.03.2007 OF THE HON'BLE CESTAT, CHENNAI.** ## **RESPONDENT'S EXHIBITS:- NIL** **//TRUE COPY//** **P.A. TO JUDGE**