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Naresh Kumar Rameshchand Gupta Vs. Collector of Customs (P) - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided On
Reported in(1984)(18)ELT578Tri(Mum.)bai
AppellantNaresh Kumar Rameshchand Gupta
RespondentCollector of Customs (P)
Excerpt:
.....was to the effect that during the time of delivery the applicant was not found on both the dates. shri gidwani further submitted that the practice followed by the postal authorities in the matter of delivery of registered letter is to inform someone in the house of the registered letter if the addressee was not available at the time of delivery, and this practice would have been followed in this case also.shri gidwani further submitted that even according to the statement made by the applicant he came to know the order as well as the contents within a day or two after 10-1-1984. but then the appeal was filed or presented on 18-2-1984 and that the applicant had not explained the delay between 11th or 12th of january '84 to 18-2-1984 and the present explanation given by the learned.....
Judgment:
1. This is an application for condonation of delay in the presentation of appeal. The brief facts are: The Orderer-in-original which is the subject matter of the appeal in Appeal No. 151/84 filed by the present applicant was passed on 29-4-83 and despatched on 18-8-83 by registered post to the address given by the applicant. On the same day, namely, 18-8-83 a copy of the Order-in-original was also sent by registered post to Shri M.G. Karmali, learned Advocate who appeared for the applicant herein before the enquiring authority.

2. In the present application the applicant stated that even upto the date of filing this application, he had not received a copy of the Order which was appealed against. He came to know of the Order from a letter dated 4-1-1984 received by him from the Collector of Bombay on 10-1-84 requiring him to pay the penalty. He, therefore, went to his lawyer, Shri Karmali, within a day or two after the receipt of the letter from the Collector, and from him he came to know that his lawyer had received a copy of the Order sometime in September, 1983, and had pot informed the applicant because he thought that the applicant must have received the copy of the Order as the endorsement on the Order showed that a copy had been sent to the applicant.

3. In the application it was contended that under Sub-Section (3) of Section 129-A of the Customs Act, an appeal to the Tribunal shall have to be filed within 3 months from the date on which the Order sought to be appealed against was communicated to the party preferring the appeal. As the Order appealed against was not at all communicated to the applicant and as he came to know about the Order only when his Advocate, Shri Karmali gave his copy of the Order after 10-1-84, the appeal filed by him within 3 months from that date was in time. It was further contended in the application that the communication of the Order to the lawyer would not amount to communication to the party.

Even if it is to be assumed that communication to the lawyer amounts to communication to the applicant, the said presumption is sufficiently rebutted by the fact that the lawyer did not actually communicate to the applicant. Finally, the applicant prayed for condoning the delay.

4. During the hearing of the application, Shri V.M. Gehani, Advocate for the applicant reiterated the contentions urged in the application.

It was further argued by Shri Gehani that before the Deputy Collector, Shri Karmali appeared for the applicant, but for preferring the appeal the applicant approached him. He took some time to study the papers and prepare and that the Tribunal should take judicial notice of these facts and condone the delay.

5. Shri CM. Gidwani, learned S.D.R. vehemently opposed this application. He contended that all that the law requires was to despatch the Order to the applicant and the communication is complete when there is proof of despatch of the Order. In the instant case the postal envelope produced by the applicant itself established the despatch of the Order. It is the common practice with the most of the persons involved in Customs and Excise cases not to receive any communication from the Customs and Excise. The postal endorsement was to the effect that during the time of delivery the applicant was not found on both the dates. Shri Gidwani further submitted that the practice followed by the postal authorities in the matter of delivery of registered letter is to inform someone in the house of the registered letter if the addressee was not available at the time of delivery, and this practice would have been followed in this case also.

Shri Gidwani further submitted that even according to the statement made by the applicant he came to know the Order as well as the contents within a day or two after 10-1-1984. But then the appeal was filed or presented on 18-2-1984 and that the applicant had not explained the delay between 11th or 12th of January '84 to 18-2-1984 and the present explanation given by the learned Advocate that he took some time to prepare is not borne out from the records and the applicant himself had not stated anything as to when he approached the present Advocate and when the appeal was prepared by the present Advocate and even the Advocate had not filed any memorandum of facts and in the said circumstances the application may be rejected.

6. In reply Shri Gehani contended that the postal endorsement was to the effect that the applicant 'was not found' and not the applicant had refused to take delivery, and in the said circumstances there was no communication of the Order, and in support of this contention Shri also relied upon Section 27 of the General Clauses Act.

7. We have considered the submissions made on both sides. Subsection (3) of Section 129-A(1) 'prescribes a limitation of 3 months for filing an appeal before the Tribunal from a decision or Order passed by the Collector of Customs (which term includes Additional Collector) as an adjudicating authority. The limitation commences from the date of communication of the Order appealed against.) There is no dispute that the Order appealed against was passed on 29-4-1983 and was despatched on 18-8-1983 by registered post. The contention of the applicant is that he had not received the Order. Therefore, there is no communication. His further contention is that it is only one or two days after 10-1-1984 when he approached his Advocate, Shri Karmali, he came to know of the Order and since there was no communication to him personally upto the date of filing the appeal, the appeal should be deemed to have been filed on time, and in any case since it was filed within 3 months from the date on which he came to know of the Order, there was no delay in preferring the appeal. The mode of service of Orders, decision, summons, notices, under the Customs Act is provided in Section 153. The two modes contemplated in this Section are : (a) by tendering the Order, decision, summons or notice or sending it by registered post to the person for whom it is intended or to his agent; (b) if the Order, decision, summons or notice cannot be served in the manner provided in Clause (a), by affixing it on the notice board of the Customs House.

Now it is seen from the above provisions that communication is complete if the Order is sent by registered post to the person for whom it was intended. Even sending of the Order by registered post to the agent or person would also be sufficient. Neither Section 129-A(3) nor Section 153 contemplates the actual service of the Order on the applicant. The expression used in Subsection (3) of Section 129-A is 'that appeal shall be filed within 3 months from the date on which the Order sought to be appealed against is communicated not from the date of receipt of the communication. In the State of Punjab v. Khemi Ram, AIR 1970 SC 214(219), the Supreme Court observed that 'once an Order is issued and it is sent out to the concerned Government servant, it must be held to have been communicated to the Government servant. It is difficult to accept the view that it is only from the date of the actual receipt by him that the Order becomes effective. If that be the true meaning of communication, it would be possible for a Government servant to effectively the Article an Order by avoiding receipt of it by one method or the other till after the date of his retirement, even though such an Order is passed and despatched to him before such date. An officer, against whom an action is sought to be taken, thus may go away from the address given by him for service of such Orders or may deliberately give a wrong address and thus prevent or delay its receipt and be able to defeat its service on him. Such a meaning of the word 'communication' ought not to be given unless the provision in question expressly so provides. If the Customs Act had not contained the provisions as to the mode of service or Orders or decision, then probably there would have been some scope for the applicant to contend that for the purpose of preferring an appeal the limitation starts from the date of actual service of the Order Having regard to the specific provision contained in the Customs Act and regard being had to the decision of the Supreme Court referred to above, the contention of the applicant that there was no communication of the Order cannot be accepted.

8. The next question for consideration is whether the applicant had sufficient cause for not presenting the appeal within the period of limitation. As per the statement contained in the application the applicant came to know about the passing of the Order on 10-1-1984 when he was called upon by the Collector to pay the penalty imposed on him.

Within a day or two thereafter he approached his Advocate, Shri Karmali who gave him a copy of the Order. Therefore, the applicant came to know bf the contents of the Order also by 12-1-1984. As the Order had been despatched on 18-8-1983 the appeal should have been filed within 3 months from that date. Even if we are to assume that the applicant came to know of the Order only on 12-1-1984 when the learned Advocate gave him a copy, the applicant did not explain the delay between 12-1-1984 and 18-2-1984. The law requires that he should explain each day's delay to the satisfaction of the authority competent to condone the delay. No explanation whatsoever has been set out in the application. During the hearing, the learned Advocate submitted that he took some time to prepare the appeal, and therefore, the Tribunal should take judicial notice that Advocates normally take a month to prepare the appeal. The learned Advocate also did not inform us when exactly the applicant had approached him and how much time he took to prepare the appeal memorandum. As contended by Shri Gidwani the Advocate has not chosen to file any memorandum of facts. We are unable to agree with the submissions made by Shri Gehani that the Tribunal should take judicial notice of the fact that the Advocates take a month's time to prepare the appeal. We have come across cases where not even a day is taken to prepare the appeal when interim Orders are required urgently.

9. As has been stated earlier, despatching the Order to the Advocate would be sufficient communication to the applicant. The Order had been despatched to Shri Karmali. According to the applicant, Shri Karmali told him that he had received the Order in September. The applicant however would have it that Shri Karmali told him that he did not communicate the Order, because of the endorsement found on the Order itself. The applicant had not chosen even to file a letter of Shri Karmali in support of his statement.

10. On careful consideration of all the aspects, we are satisfied that the applicant had not shown any cause much less sufficient cause to condone the delay of nearly 6 months in preferring the appeal. We, therefore, reject this application for condonation of delay.

11. As we have rejected the applicant's application for condonation of delay the appeal shall have to be rejected as barred by time, and accordingly, we reject the appeal as barred by time.


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