1. This is an Application for condonation of delay in filing the Appeal.
2. The appeal was itself filed on the 6th of April, 1985, notwithstanding that the order under appeal was, admittedly, served upon the Appellant on 21.12.1984 while he was under detention under COFEPOSA. (b) even prior to his release he was sick and under medical treatment in Jail as evidenced by a medical certificate to that effect (Annexure A); (c) after release as well, he continued to be sick and was under medical treatment for more than one and half months (medical certificate attached as Annexure B); (d) consequently, he could not file the Appeal and he prays for con-donation of the delay extending to a period of nearly seventeen days after the expiry of the period of limitation on or about 29th of March, 1985.
4. It would appear from a perusal of Annexure B dated 3.4.1935 that the Appellant was under medical treatment for Infective Hepatatis from 12.2.1985 and advised rest for about one and half months i.e. till 27.3.1985. That leaves the period between 27.3.1985 and 6.4 1985 uncovered. Nor was there any account of each day's delay between the aforesaid dates forthcoming except for an oral submission from the Counsel that the Applicant was still resting and unable to give instructions for the Appeal.
5. In terms of Section 129A(3) and (5) of the Customs Act, 1962 (hereinafter, 'the Act'), an Appeal to the Tribunal has to be filed within three months from the date on which the order sought to be appealed against is communicated and an Appeal may be admitted after the expiry of the said period, if the Tribunal is satisfied that there was sufficient cause for not prosecuting it within that period.
6. The expression 'sufficient cause' in Section 5 of the Limitation Act, (1905) received a liberal construction from the Hon'ble Supreme Court so as to advance substantial justice, when no negligence nor inaction nor want of bona fides is imputable to the Appellant AIR 1969 S.C. at 578 Shakuntala Devi v. Kuntal Kumari. In construing the expression 'within such period' (in Section 5 of the Limitation Act, 1908-analogous to 'within that period in Section 129A(5)), it was laid down that the expression means within the period which ends with the last days of limitation prescribed. In other words, in all cases falling under Section 5, what the party has to show is why he did not file an Appeal on the last day of limitation prescribed.
That may inevitably mean that the party will have to show sufficient cause not only for not filing the Appeal on the last day but to explain the delay made thereafter day after day. Therefore, in showing sufficient cause for the condonation, the delay between the last day prescribed for the Appeal and the day on which the Appeal was, indeed, filed has also to be explained or accounted for, day after day.
7. It would be observed from the facts and circumstances of this case that, as already stated, there was no explanation whatsoever for the period between 27.3.1985 and 6.4.1985 when the appeal was actually filed and it is not possible to conclude, on the oral submission of the Counsel without more, that there was sufficient cause for the delay between the two aforesaid dates, in the filing of the Appeal despite due diligence. The Appellant cannot be said to have been not guilty of negligence, inaction or want of bona fides.
8. In the premises the Application for condonation of the delay is dismissed.