TMI Blog1986 (2) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... iled within the prescribed limit of 3 months as the case file was mixed up with other files. This caused the delay. The appellate decision involved an important question of law and the same if allowed to stand, will have serious repercussions on revenue and such, it, in the public interest that the delay may be condoned. The Hon ble Tribunal may therefore be pleased to condone the delay and admit the appeal please. 2. Shri A.S. Sundar Rajan, the learned JDR, has appeared on behalf of the appellant and Shri J.M. Jamadar, the learned Advocate has appeared on behalf of the respondents. 3. At the outset of the hearing, we had brought it to the notice of the learned Advocate that on 12.12.85 the Bench had directed to file an affidavit of the Collector. The Bench s direction dated 12.12.85 is reproduced as under :- The matter was called. The two applications Nos. 264/85-C (Collector of Customs, Bombay v. Apna Industries) and C-263/85 (Collector of Customs, Bombay v. R.K. Industries) arise out of the same order. This appeal also arises from the same combined order of the Collector (Appeals). Shri Ajwani who is present today for the applicant, i.e. Collector of Central Excise, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be the date from which the limitation will start to run for filing an appeal to the Tribunal. In that case the Income Tax Officer had obtained a copy of the order of the Appellate Assistant Commissioner under executive instructions of the Commissioner on 7.4.72. The Appellate Asstt. Commissioner had communicated a copy of his order to Commissioner of Income Tax in compliance with the provisions of Section 250(7) on 12.5.72. The appeal was filed on 4.7.72. The assessee had contended that the Income Tax Officer had acted as agent of the Commissioner and as such, the date of the service of the order on the Income Tax Officer was the date of service of the order on Commissioner. The Tribunal had accepted the contention of the assessee, and being aggrieved, the Revenue had filed a writ application before the Calcutta High Court and the Hon. High Court had held that date of service in terms of Section 250(7) of the Income Tax Act 1961 is the date on which the Commissioner had received the order from the office of the Appellate Asstt. Commissioner of Income Tax. Shri Sundar Rajan, the learned JDR, had referred to another judgment in the case of Commissioner of Sales Tax v. Ram Kishan K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent that there had been no service of the orders passed by the Collector of Customs (Appeals) on the Collector of Customs, Bombay is accepted, then there was no delay in the filing of appeal; and if this plea of the appellant is not accepted, alternatively, he had pleaded that condonation of delay on the ground that he was prevented by sufficient cause in the late filing of the appeals. 5. Shri J.M. Jamadar, the learned advocate, has appeared on behalf of the respondents. He has referred to the provisions of sub-section (3) of Section 128A of the Customs Act 1962, and the language of the said sub-section shows that the Collector of Customs (Appeals) has to communicate the order passed by him to the appellant, the adjudicating authority and the Collector of Customs. He has argued that the word communicated means to transmit the paper. He has referred to the provisions of Section 153 of the Customs Act 1962 which provide that any order or decision passed or summons or notice issued under this Act shall be served 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. He has pleaded that the Assist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer if such cause is thrown out merely on the ground of some delay which is also explainable. These are relevant considerations which must enter a judicial verdict before rejecting such case on the ground of delay. He has referred to another judgment of the CEGAT in the case of Collector of Central Excise v. Multiple Fabrics Co. (P) Ltd. reported in 1984 (16) E.L.T. 299 wherein the Tribunal had held that if the delay in transit was proved to the satisfaction of the Tribunal, the delay in filing of the appeal can be condoned. 7. After hearing both the sides and going through the facts and circumstances of the case, we would like to observe that the Collector of Customs, Bombay had issued standing order vide his No. 6756 dated 25.6.81. The same is reproduced below : Provision has been made in the Finance (No. 2) Act, 1980 for creation of Appellate Tribunals. The relevant extracts of the Finance (No. 2) Act, 1980 are enclosed. It has been decided to centralise the work relating to filing of appeals and other matters to be pursued with the Tribunals. The Unit, to be headed by an Assistant Collector, will initially comprise one Appraiser, one Examiner, one P.O. (S.G.) one Stenog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard it to the Additional Secretary to the Government of India, Ministry of Finance, New Delhi for review. Before the letter is issued it should be ensured by the coordination unit that it does not contain patent errors or inaccuracies and when necessary the unit shall remit the draft letter back to the group refer for clarification. Obviously inadvertent errors minor discrepancies etc. should however be corrected in the Coordination Unit itself. 6. The provision relating to the tribunal provide for filing an appeal against an order of Collector (Appeals) by either party. Where such an appeal is filed before the Tribunal the other party shall within 45 days of the receipt of the notice of appeal file a memorandum of cross objections. Instructions regarding filing of such memorandum will issue separately in due course. For the present, where an appeal is rejected by the Appellate Collector, particulars thereof should be entered in a register to be maintained as at annexure P in respect of columns 1 to 4. No further action need be taken in respect of such appeals. 7. It should be noted for strict compliance that the time limit of 90 days for filing an appeal in the Tribunal sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal has been wholly or partially admitted, the concerned adjudicating authority will immediately forward it to the group/Department for detailed scrutiny. After scrutiny, if it is decided that an appeal should be filed to CEGAT against the order-in-appeal, the concerned Group/Department should prepare a detailed note clearly mentioning therein, the grounds of appeal and the documents relied upon, and then obtain the Collector s Authorisation as required under Section 129A(2) of the Customs Act. This should be done within 30 days from the date of receipt of the Order-in-Appeal. 5. After obtaining the Collector s authorisation, the papers should be forwarded to the Tribunal Coordination Unit to prepare and file the appeal within 30 days from the date of receipt of Collector s authorisation. 6. In the cases where it will not be possible to prepare grounds of appeal within the time limit, the Assistant Collector should invariably state the reasons for the delay so as to enable the Tribunal Coordination Unit to prepare the prayer for condonation of delay. 7. Whenever assessees file appeals to the CEGAT, against the orders passed by the Collector, the Collector (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O had been constituted the agent of the Commissioner and accordingly limitation for the filing of appeal started running from April 7, 1972, and the appeal was barred by limitation. The Tribunal accepted the contention made on behalf of the assessee and held that the time for filing the appeal should be computed from April 7, 1972. The Tribunal accepted the contention made on behalf of the assessee and held that the time for filing the appeal should be computed from April 7, 1972, The Tribunal however condoned the delay in filing the appeal and admitted. The assessee filed a writ petition challenging the propriety of the Tribunal s order. Held, the instruction of the Commissioner did not show that the Commissioner authorised the ITO to receive a copy of the order of the AAC under s. 250(7) of the Act nor was there anything to show that the Commissioner appointed the ITO his agent. There was also no material to show that the AAC delivered a copy of his order to the ITO treating the latter as the agent of the Commissioner. On the other hand, the fact that in spite of the delivery of a copy of his order to the Commissioner in compliance with s.250(7) clearly indicated that the AAC d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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