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TMI Blog2010 (8) TMI 562X X X X Extracts X X X X X X X X Extracts X X X X ..... days. As per the memorandum of appeal originally filed, the date of communication of the impugned order is 28-2-2008, which has been subsequently amended to be 22-8-2008 (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 22-8-2008. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dering 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. Commissioner of Customs, Mumbai - 2009 (245) E.L.T. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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 resu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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