1. The prayer in this application is for condonation of delay in filing the appeal CD (Bom.) 315 of 1985. It is averred in the application that the order in original against which the applicant preferred the appeal is dated 18-1-1984 but he had received the copy of the order only on 22-2-1985 and that within a period of three months from that date he had filed the appeal, viz. on 21-5-85. It was further stated in the application that the applicant was not directed to take delivery of the order-in-original any time earlier to 22-2-85 nor was he supplied with the copy of the said order earlier to that date. The applicant had contended that it was on his request made on 31-12-84, a copy was given to him on 22-2-1985.
2. During the hearing of this application, Shri Shah, the applicant's learned Advocate referred to the above averments and also referred to the provisions of Section 131-A of the Customs Act, 1962.
3. Shri Pattekar for the respondent Collector submitted that inspite of his best efforts he could not get any information from the Collector of Customs, as to the date on which the order was communicated to the applicant. He, however, stated that the date of issue has been mentioned in the order in original as 6-2-84. He did not make any further submission in the matter.
4. I have carefully considered the submissions made on both sides. The two questions that arise for consideration in this application are : (ii) If not, is the applicant prevented by sufficient cause from filing the appeal within the prescribed time.
5. Under Sub-section (3) of Section 129-A, an appeal to the Tribunal shall have to be filed within three months from the date on which the order sought to be appealed against is communicated to the Collector of Customs or the other party, as the case may be.
6. The modes of service of the order, decision etc, are provided under Section 153. The modes provided are : (i) by tendering the order to the person for whom it is intended or to his agents; (ii) by sending it by registered post to the person for whom it is intended or to his agent; and ' (iii) if the order cannot be served in any of the manner set out above, by affixing it on the notice board of the Customs House.
7. As the order in original bears the date 6-2-84 as the date of issue of the order the Tribunal may presume that the order has been duly despatched to the persons mentioned therein. But this presumption is a rebuttable presumption. If a party complains of the non-communication of the order and also denies the receipt of the order and further states on oath that the order has not been communicated then the presumption gets rebutted. The burden shifts to the department, to satisfy the Tribunal of the communication of the order by production of proof regarding the despatch of the order. In the instant case, an opportunity was given to the department not once but twice to adduce proof as to the despatch of the order to the applicant herein. The learned Departmental Representative Shri Pattekar made a pathetic submission before the Bench. He pleaded that irispite of his best efforts the Collector of Customs had not furnished any particulars as to the date and mode of despatch of the order to the applicant herein.
Thus, the department has failed to discharge its burden. The applicant had sworn to an affidavit and in his sworn statement he had stated that he made an application for the supply of the copy of the order on 31-12-84 and the copy was given to him in person on 22-2-85.
8. As has been noticed earlier, an appeal by a party is required to be filed within three months from the date of communication of the order appealed against. In the absence of evidence on the part of the department as to the date of communication of the order to the applicant, the date of receipt of the order by him shall have to be taken as the date on which he was communicated with the order. In that view of the matter the appeal filed within three months from that date is within the prescribed period of limitation.
9. As the appeal was filed within the prescribed period of limitation the question of delay or condoning the delay does not arise.
10. Having regard to the findings on question No. (i), the question No.(ii), does not survive for consideration. The appeal is treated as having been filed within the prescribed period of limitation. This application is disposed of accordingly.