TMI Blog1990 (7) TMI 261X X X X Extracts X X X X X X X X Extracts X X X X ..... view of this the date of receipt of the order by the counsel on 30th November, 1989 has to be taken to be the date of the communication of the order. The appeal has been received in the Registry of the Tribunal on 9-3-1990 i.e. the date on which the appellant has signed the appeal memorandum. Thus there is a delay of 8 days in filing the appeal. The appellant in the grounds of appeal has urged that the appellant has filed the appeal also under the Customs Act arising out of the same proceedings. Under the Gold (Control) Act, it is seen because of the provisions of the Gold (Control) Act the first appeal lies before the Collector of Central Excise (Appeals) and it is against this appellate order the appellant is separately under appeal before us. In the affidavit the appellant has given the reasons as under : After receipt of the order mentioned above, I wanted to meet my Counsel and instruct them to file appeal before this Hon ble Tribunal. In the second week of December 1989, my aged mother had an heart attack and she was hospitalised in the General Hospital and she was undergoing treatment there for about a month. Thereafter in the month of January, 1990 my two years old son ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on record to say that his mother had an heart attack in December, 1989 and was undertaking treatment for about a month and that in the month of January his son had an attack of diarrhoea and that he could not attend to his business. It is observed that the appellant had time even after January to file the appeal as the 3 months period for filing the appeal was still available to him till the end of February. The appellant has, however, taken the plea that when he received the letter from the counsel for pre-depositing Rs. 20,000 in regard to his earlier appeal filed under the Customs Act he presumed that the said order covers also the order of Collector of Central Excise (Appeals). This plea of the appellant is not understandable inasmuch as he had not filed any appeal against the order of the Collector of Central Excise (Appeals) under the Gold (Control) Act and the question, relating the order of pre-deposit to the order of Collector of Central Excise (Appeals), therefore, would not arise. The appellant has stated that he received the letter from the counsel that an appeal has to be filed before 1-3-1990 and that this letter was, he submitted, received by him on 7-3-1990. What em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plied). In the present case the order copy is addressed to the petitioner Zafarulla, Madras, through his counsel, which evidently means that the copy of the order meant to be served on the appellant and the medium of transmission has been chosen by the lower appellate authority through the petitioner s counsel and the petitioner received the order only on 5-12-1989 and excluding the date of receipt of the same the appeal should have been filed on 5-3-1990 and has been presented on 9-3-1990 in the Tribunal. Therefore, there is effectively only 4 days delay. In my view the short delay in the facts and circumstances of the case (whether it is exactly 4 days or 8 days taking into account 30th November, 1989 the date of receipt of the impugned order by the petitioner s counsel as the relevant date) would merit condonation. I may usefully in this context refer to the ruling of the Supreme Court in the case of Harsha Tractors Ltd. v. Collector of Customs, reported in 1989 (41) E.L.T. 8 (S.C.), where the Supreme Court condoned a delay of 104 days and the plea in that case was that one Sharma, a retired Inspector of the Central Excise, was looking after the excise and customs work and his s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a step-motherly treatment when the State is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the facts and circumstances of the case the view taken by Member (Technical) or the one taken by Member (Judicial) is correct. [Order per : G. Sankaran, President]. Heard Shri S. Jothiraman, Advocate for the appellant and Shri P.B. Vedantham, Departmental Representative for the respondent. 8. The facts of the case, to the extent relevant for the present purpose, have been set out in the order of learned Member (Technical) and do not need to be repeated. The delay is 5 days beyond the prescribed period of limitation in Section 81, sub-section (4), of the Gold (Control) Act, 1968, which, however, provides in sub-section (6) for condonation of delay in preferring the appeal if sufficient cause is shown for not having presented the appeal within the 3 months period. 9. One thing which is noteworthy is that the Memorandum of Appeal presented before the Collector (Appeals), Madras, under Section 80 of the Gold (Control) Act showed the address to which notice may be sent to the appellant as that of the counsel. In my view the order should, therefore, have been appropriately sent to the appellant himself at the address furnished in the Memorandum of Appeal and a copy of the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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