Full Judgment
2. Factual background : The appellants imported 12 Crates and one case of Apple Grading Equipment vide Bill of Entry No. 1603, dated 14-6-1982 and found that there was shortage of goods. The appellants in their appeal memo said that they claimed refund of duty vide application dated 3-9-1982 filed through their Customs House Agent M/s. Vaz Forwarding Pvt. Ltd. Bombay for shortages. The Asstt. Collector in his order dated 28-10-1986 rejected the claim on the ground that "The Agents are not entitled to file an appeal or claim of refund in their own name and right in relation to imports, export...". Since in the present case the refund has been filed by an Agent in his own name as 'claimant', it ought to suffer some consequence and therefore rejected the claim as non-maintainable. The appeal against this order was rejected by Collector (Appeals) on the ground of time bar.
3. Ld. Advocate for the appellant submitted that the claim was correctly filed by their Customs House Agent on their account and that according to clause (h) of the agreement which was executed on 14-7-1981 they have given express authorisation to file claim for refund of customs duty on their behalf. Ld. Advocate therefore submitted that their Customs House Agent did not act on his own but filed the claim on their behalf by virtue of express authority given to them. They had moreover by virtue of authorisation of 16-9-1987 specifically authorised their Clearing Agent in this behalf.
3.2 Ld. Advocate further submitted that Collector (Appeals) passed order rejecting their claim as time-barred without giving them opportunity of any personal hearing and this amounts to infraction of natural justice. Their appeal was not time-barred as they filed it as soon as they received copy of the Order of Assistant Collector. Drawing attention to Order dated 28-10-1986 of Asstt. Collector, he submitted that this order is not endorsed to any person and in any case the date of despatch cannot be termed as date of communication of order.
Limitation period will commence only from the date the order is actually received by the appellant and not when it is despatched.
4. Ld. DR on behalf of the Revenue submitted that clearing agent could not claim refund without specific undertaking that the beneficiary was appellant and that specific authorisation dated 16-9-1987 given to Clearing Agent was issued subsequent to rejection of Refund claim. In regard to the personal hearing, he submitted that no personal hearing was needed, when the appeal itself was time-barred. Ld. Advocate submitted in rejoinder that they challenge the finding that they had received the order on 28-10-1986. He submitted he will produce necessary document including the copy of the Contract entered into with Clearing Agent which would establish the claim that they filed the appeal as soon as they received the order and that their agents were duly authorised by them to make a claim of refund on their behalf.
5. An affidavit from Shri J.A. Qadri, General Manager of the appellant's Company as also photocopy of the agreement entered into through Clearing Agent was subsequently submitted by the appellants through their application dated 13-9-1994.
6. I have given careful consideration to the submissions made by both sides. I first deal with the question relating to an order passed without granting the appellant an opportunity of personal hearing, particularly when there is no finding on record that right of hearing was waived by the Department. It is held by Hon'ble Supreme Court in case of K.L. Tripathi v. State Bank of India and Ors. that "The rules of natural justice are flexible and cannot be put on any rigid formula.
In order to sustain a complaint of violation of principles of natural justice on the ground of absence of opportunity of cross-examination, it has to be established that prejudice has been caused to the party concerned by the procedure followed. Neither cross-examination nor the opportunity to lead evidence by the delinquent is an integral part of all quasi-judicial adjudications." 7. In this case, however the Hon'ble Apex Court held that "when on the question of facts there was no dispute, no real prejudice has been caused to a party aggrieved by an order, by absence of any formal opportunity of cross-examination per se does not invalidate or vitiate the decision arrived at fairly. This is more so when the party against whom an order has been passed does not dispute the facts and does not demand to test the veracity of the version of the credibility of the statement. The party who does not want to controvert the veracity of the evidence from or testimony gathered behind his back cannot expect to succeed in any subsequent demand that there was no opportunity of cross-examination...." 8. This however is not the case here. The appellants have vehemently contested that their appeal was time barred. In case of Smt. V.P. Kunhi Ayichu v. Collector of Customs, Ahmedabad 1986 (26) E.L.T. 1021 (Tri.) the Tribunal held that "the principles of natural justice do not require that an opportunity for the hearing should have been given to the appellants when their appeals were time barred." Relying upon the judgment of Apex Court in case of K.L. Tripathi (supra), Tribunal held that considering the facts that appeal was time-barred and delay could not be condoned by the Board, there was no lack of compliance with natural justice in denying the hearing to the appellants.
9. In the case of Standard Electric Appliances v. Govt. of India and Ors. 1987 (32) E.L.T. 338 relying upon the judgment of Hon'ble Apex Court, in case of F.N. Roy v. Collector of Customs 1983 (13) E.L.T.1296 the Tribunal held in para 5 that "when the appeal itself was time-barred and was liable to be rejected on that ground, there was no question of affording a personal hearing to the petitioner."Jayashree Timber Products v.Collector of Central Excise, Calcutta 1987 (27) E.L.T. 707 (Tribunal) Tribunal held that there was denial of principles of natural justice when the Collector (Appeals) did not grant a hearing to the Appellant.
In that case the learned Advocate had pleaded that even if the appeal was hit by limitation, it was obligatory for the Collector of Central Excise to grant a personal hearing. In support of his contention, he has sited a judgment in the case of Hindustan Pilkington Glass Works Ltd. v. Superintendent, C.E., Asansol and Ors. 1978 (2) E.L.T. (J 229).
In this case the Hon'ble Calcutta High Court held that 'the denial of natural justice is itself a miscarriage of justice which cannot be cured by preferring an appeal as provided 'in statute itself.
11. The facts in the present case are that the appellants vehemently challenged that their appeal is time-barred and therefore it cannot be straightway presumed that since the appeal was time-barred, personal hearing was not necessary. Collector (Appeals) 'in his Order No.1540/88-BCH, dated 25-2-1988 has observed, "The impugned order was despatched to the appellant on 28-10-1986 whereas the appeal has been filed by the appellants on 3-8-1987 i.e., after a period of six months." He has proceeded on the assumption that date of despatch is the date of communication within Section 128 of the Customs Act. This is obviously not a correct interpretation of the word 'communication'.
This is in my view not the exact meaning. The word 'communication' as is used in Section 128 of Customs Act, 1962 states "any person aggrieved by any decision or order passed under this Act by an officer of Customs, lower in rank of Collector of Customs, may appeal to the Collector (Appeals) within three months from the date of communication to him for decision or such order...".
12. Date of communication can only refer to date of service of the order. In case of Section 35 of Central Excises and Salt Act x x x xx which is similar to it, Hon'ble High Court of Allahabad in case of Prakash Security Devices (India) v. Union of India 1989 (43) ELT 635 held that limitation of three months is to start from the date of service of order and the appeal is dismissed as time-barred without recording the finding as to the date of service of order was illegal.
13. The affidavit filed by the General Manager of the appellant's Company states that copy of the order was either received in the last week of April or in the first week of May, 1987 and that exact date of receipt of order is not clearly shown in the record. The Affidavit further states that on receiving the copy of order from the Clearing Agent, the case was processed and appeal was filed. I find from the papers that there is no copy of Memo of Appeal filed before Collector (Appeals). Even the specific order was given by this Bench on 2-5-1994 that the Ld. Advocate was to file copy of appeal memo preferred before Collector (Appeals) so as to find out whether the Collector (Appeals) had taken all the points into consideration before deciding the issue of delay in filing the appeal. In the absence of Memo of Appeal it is not possible to know what the exact date was, x x x x x of the receipt of order either by the Clearing Agent or the appellant. The order dated 28-10-1986 of Asstt. Collector of Customs does not bear any endorsement as to the person to whom it is despatched nor the records indicate the date when it was received either by the appellants or by the Clearing Agent.
14. The date this order actually served on the Clearing Agent of the appellant, or if it was served on the appellants directly, the date thereof is of vital importance in deciding the claim made by the appellants. In absence of any information in the papers and absence particularly of memo of appeal submitted before Collector (Appeals), it is not possible for the Tribunal to go into these details. At the same time in absence of any evidence that the right of personal hearing was waived deciding the appeal without hearing amounts to denial of principles of natural justice. I therefore set aside the impugned order and remand the case to the Collector (Appeals) for de novo decision after affording them an opportunity of hearing and determination of the matter relating to limitation with reference to the date of service of the order and pass necessary order in accordance with the law. Appeal allowed by way of remand.