Per: P.G. Chacko
There are two applications before us, both filed by the appellant, one for condonation of delay in filing of the appeal and the other for waiver of pre-deposit and stay of recovery. We take up the first application.
2. In this application, it is submitted that the appeal is delayed by 30 days. As per the memorandum of appeal originally filed, the date of communication of the impugned order is 28.02.2008, which has been subsequently amended to be 22.08.2008 (fresh memorandum of appeal in CA-3 form with the amended date has been filed by the appellant). The appeal was filed on 15.12.2008 with the professed delay of 30 days reckoned with reference to 22.08.2008. For condonation of this delay, the appellant has submitted that he was mentally disturbed and was in continuous stress and hence unable to pursue the appellate remedy. He has submitted that, as there was nothing to be gained by him in delaying the appeal, the delay of 30 days’ should be condoned. An affidavit subsequently filed by the appellant mentions 22.8.2008 as the date of final service of the impugned order on him. A few documents enclosed with the affidavit need to be referred to in its context. One of these documents is a letter dated 22.8.2008 of the Superintendent (Air Customs) addressed to the appellant s advocate, Shri Prakash K. Shingrani. This letter indicates (a) that the appellant had by a letter dated 8.8.2008 requested for a copy of the impugned order, (b) that a copy of the said order received earlier by him had been returned saying that he needed a copy of another order (No. 29/2006-07), and (c) that a copy of the impugned order (No. 30/2006-07) was forwarded to the appellant by the Superintendent in response to the formal request dated 8.8.2008. The other documents attached to the affidavit are copies of certain medical records including a medical certificate which indicates that the appellant s wife was under medical treatment from 10.10.2008 to 9.12.2008. Other medical records indicate that certain medicines were prescribed by a hospital for certain skin ailments of the appellant. In any case, these medical records do not have any bearing on the reasons stated in the COD application ( mentally disturbed and in continuous stress ).
3. The learned SDR has produced certain documents to show that a copy of the impugned order was despatched by registered post to the appellant on 5.4.2007 and that another copy of order served on his Advocate Shri Prakash K. Shingrani on 4.4.2007. One of the documents produced by him is an attested copy of postal acknowledgement No. 3803 dated 5.4.2007, which indicates that the postal article with the adjudication file number superscribed on the envelope was registered by the postal department for despatch to the appellant on 5.4.2007. The other document produced by the SDR is a copy of page No. 45 of the impugned order, which shows the names and addresses of all the persons to whom the order was issued. Among these is the name of the appellant s advocate Shri Prakash K. Shingrani, who acknowledged receipt of a copy of the order by putting his signature with date (4.4.2007) against his name figuring at Sr. No. 11 of the list of addresses. The SDR has referred to case law also.
4. The Counsel for the appellant has also referred to a letter dated 31.3.2008 of the Superintendent (Air Customs) addressed to the appellant (available on record). This letter indicates that, in response to a letter dated 25.3.2008 of the appellant, the Superintendent supplied a copy of Order No. 29/2006-07 dated 28.2.2007 of the Commissioner to the appellant. Learned Counsel has submitted that a copy of the impugned order was received by the appellant only on 22.8.2008 and that the subsequent delay in the filing of the appeal has been satisfactorily explained in the present application as well as the affidavit. Confronted by the factum of earlier service of the impugned order indicated by the documents produced by the learned SDR, the learned Counsel submits that the earlier copy of the order received by the appellant was returned to the department and that this fact was acknowledged in the subsequent correspondence from the department. The learned Counsel further submits that the order copy received by Shri Prakash K. Shingrani, Advocate on 4.4.2007 cannot be considered as a copy received on behalf of the appellant inasmuch as the said Advocate had represented other parties also before the adjudicating authority. Coming to the case law relied on by the SDR viz. P. Bhoormal Tirupati Vs. Additional Collector of Customs, Madras 2000 (126) ELT 65 (Mad.), the learned Counsel submits that the cited decision cannot be applied to the present case inasmuch as, in that case, the Hon’ble High Court was not considering any delay of appeal filed under Section 129A of the Customs Act, 1962. It is submitted that the Hon’ble High Court was dealing with the period of limitation prescribed under Section 110(2) of the Customs Act for issuance of show-cause notice under Section 124 for confiscation of seized goods. According to the learned Counsel, the Hon’ble High Court did not lay down any ruling applicable to a factual situation of the kind involved in the instant case.
5. Apart from the above, it is submitted by the learned Counsel that the extent of delay (if any) of appeal filed under Section 129A of the Customs Act should be reckoned with reference to the date of communication of the impugned order. The order copy despatched by registered post to the appellant was returned unserved with the postal remark left and this fact is not in dispute. This shows that there was no actual service of the order copy on the appellant and hence no communication of the Commissioner s decision. It was only on 22.08.2008 that, according to the learned Counsel, the Commissioner s order was communicated to the appellant and, therefore, for purposes of Section 129A, the delay of the appeal should be computed with reference to 22.08.2008. In this context, the Counsel has claimed support from Pravin Mansukhlal Mehta Vs. Union of India and Others 1988 (34) ELT 422 (Bom). Learned Counsel has also pleaded for an extremely liberal view in the facts and circumstances of this case. In this connection, he has relied on the Hon’ble Supreme Court s judgment in Civil Appeal No. 2395 of 2008 (Improvement Trust, Ludhiana Vs. Ujagar Singh & Ors.). He has also referred to certain orders of this Tribunal to the effect that the date of actual service of order should be reckoned as the date of communication of the order viz. Haldiram India Pvt. Ltd. Vs. Commissioner of Central Excise, Delhi 2007 (220) ELT 526 (Tri-Del); Varsha International Vs. Commissioner of Central Excise, Mumbai 2009 (247) ELT 737 (Tri-Bang); Margra Industries Ltd. Vs. Commissioner of Customs, New Delhi 2006 (202) ELT 244 (Tri-LB).
6. Learned SDR submits that the case law cited by the learned Counsel relating to proceedings under the Central Excise Act is not applicable to the present case. It is submitted that the view taken by the Tribunal s Larger Bench in Margra Industries (supra) is contrary to the view taken by the Hon’ble High Court in P. Bhoormal Tirupati case (supra) and hence cannot be followed as a precedent. It is also pointed out that, in similar cases, the Tribunal followed the High Court s ruling after holding that Margra Industries (supra) was not good law. In this connection, reference is made to Classic Marble Vs. Commissioner of Customs, Mumbai 2009 (245) ELT 679 (Tri-Mum).
7. We have considered the submissions. At the outset, we may state that the reason stated by the appellant in this application remains unsubstantiated. The only reason stated is that the appellant was mentally disturbed and under continuous stress and hence could not pursue the appellate remedy. The ground stated by the appellant for condonation of delay of 30 days (reckoned with reference to 22.8.2008) has not been substantiated and hence rejected.
8. The prime question arising out of the rival submissions centres around date of communication of the impugned order. According to the appellant, the order was received by him only on 22.8.2008. This claim is contradictory to his own admission that a copy of the order had been received earlier but returned to the department. The Revenue has produced documentary evidence of the order having been personally served on appellant s advocate on 4.4.2007. The learned Counsel has not been able to disprove this fact. His only argument is that the Advocate had appeared for other parties also and hence cannot be said to have received a copy of the order on behalf of the appellant. This argument does not appear to stand the test of law or logic. It is not in dispute that, Shri Prakash K. Shingrani, Advocate (who is the appellant s Counsel named in the memorandum of appeal) received a copy of the Commissioner s order on 4.4.2007. Section 153 of the Customs Act, 1962 provides the procedure for service of orders, notices etc. It provides for direct service of an order on the person for whom it is intended, or on his agent. The advocate holding vakalat of the appellant before the Commissioner was acting as an agent of the appellant. The very same Advocate figures as the appellant s Counsel before the Tribunal vide column No. 6 of the memo of appeal. It cannot, therefore, be gainsaid that Shri Prakash K. Shingrani, as agent of the appellant, received a copy of the Commissioner s order on 4.4.2007. Thus, the department has been able to show that a copy of the order was served on the appellant in terms of Section 153(a) of the Act by tendering the document to his Counsel. The impugned order was duly served as early as on 4.4.2007. The subsequent conduct of party cannot alter this fact.
9. Even if it be assumed that there was no service of the order copy on the appellant through the mode of tendering it to him or his agent, there is solid case law in favour of the department in this case as regards service of the order by registered post. It is not in dispute that a copy of the order was sent by registered post on 5.4.2007. As per the ruling of the Hon ble High Court in P. Bhoormal Tirupati case, service of notice under Section 153 of the Customs Act, 1962 shall be deemed to have been properly effected when the postal article containing the notice is properly addressed, pre-paid and sent by registered post. Their Lordships further held that the return of the postal article to the sender with remark left would not be sufficient to disprove the service of the notice. It is true that the Hon’ble High Court was interpreting the law in a different context, but there can be no denial of the fact that their Lordships were interpreting the provisions of Section 153 in relation to service of show-cause notice on the noticee. Fairly enough, the learned Counsel has not argued that Section 153 of the Act is liable to be differently construed in relation to an order. As per the ruling of the Hon’ble High Court, it can be held, in the present case, that the department also served a copy of the order on the appellant by it s despatch by registered post, properly addressed and duly pre-paid. No overriding case law has been cited by the learned Counsel in this context to establish to the contra. One of the decisions cited by him is a larger Bench decision which is to the effect that the date of communication of an order/notice is the date of actual delivery of the document to the addressee. In the case of Classic Marble (supra) cited by the learned SDR, the larger Bench decision in Margra Industries (supra) was held to be not good law as it was contrary to the aforesaid ruling of the Hon’ble High Court.
10. There is no explanation whatsoever for the delay of the appeal prior to 22.8.2008. The Hon’ble Supreme Court s judgment in Improvement Trust case (supra) etc. cited by the learned Counsel are not applicable to the present case for want of explanation of the heavy delay of the appeal reckoned with reference to 4.4.2007, the earliest date on which a copy of the order was served on the appellant through his Counsel.
11. In the result, this application is dismissed and consequently the appeal also gets dismissed as time-barred. The stay application also gets dismissed.