TMI Blog2014 (1) TMI 280X X X X Extracts X X X X X X X X Extracts X X X X ..... eason which cannot be a reason to condone such inordinate delay. Therefore, I hold that there is no ground to condone the delay in this case - Condonation denied. - Appeal No. C/COD/83/2011,C/S/58/2011 & C/72/2011 - FINAL ORDER No.40662/2013 - Dated:- 20-12-2013 - Shri Mathew John, J. For the Appellant : Shri T. Sundaranathan, Advocate For the Respondent : Shri Parmod Kumar, JC (AR) JUDGEMENT 1. This appeal is against an impugned order passed on 28-05-09. The appeal was filed on 23-02-2011. Since there was a delay in filing of the appeal, the appellant has also filed an application for condoning delay of 546 days from the date of impugned order to the date of filing of the appeal. 2. In the application for condoning delay, the submission made by the applicant is that the applicant had not received the copy of the order originally dispatched by the office of the adjudicating authority. The applicant submits that he came to know about the outcome of the adjudication proceedings and also about further proceedings by other persons involved in the adjudicated matter from his lawyer who gave him a copy of the impugned order. Then applicant states that he immediately s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s from the date of receipt of the same. I submit that assuming the date of order to be the date of receipt of the order, the appeal should have been filed on or before 90 days i.e. 28-8-2010 I submit that I was also advised to file the present appeal along with a petition praying for condoning the delay, by way of abundant caution, assuming but without admitting the same for the bonafide reasons as stated earlier as the delay of 546 days in filing the present appeal from the date of impugned order deserves to be condoned as warranted by the canons of law and justice and also in the facts and circumstances of the case. I thus submit that I filed the present appeal with a delay of 546 days from the date of the impugned order and it is also prayed that the above delay may be condoned for the bonafide reasons as stated earlier." 3. When the matter came up for hearing on 12-09-2013, Revenue produced proof by way of extract of their dispatch register showing dispatch of the order by speed post on 29-6-2009. Further The Authorized Representative for Revenue also produced letter No.111156-03509 dt. 07/04/2011 addressed to the Deputy Commissioner, Office of the Commissioner of Customs and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved on the appellants. I further submit that as the appeal was filed immediately after the receipt of a copy of the order as stated in the abovepetition, there was no delay in any manner as known to law. I thus submit that in the above facts and circumstances, if there be any delay, the same is bonafide and neither willful nor wanton and thus the interests of justice warrant that the said delay deserve to be condoned. 4. I submit that as the delay in filing the above appeal is not attributable to the appellant for any reason, the delay of 546 days in filing the above appeal deserves to be condoned." 5. The learned advocate for the applicant submits that the department has not been able to produce the cover that was returned by the postal authorities. The department also did not produce any evidence to show that on return of the order by the postal authorities, the same was displayed on the notice board of the Customs department as per provisions in section 153 of the Customs Act which reads as under :- SECTION 153. Service of order, decision, etc.?- Any order or decision passed or any summons or notice issued under this Act, shall be served - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be the commencing date in reckoning the period of 15 days contemplated in Clause (d) to the proviso of Section 138 of the Act. Of course such reckoning would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address. In the present case the accused did not even attempt to discharge the burden to rebut the aforesaid presumption. Relying on this observation, the learned ACGSC submitted that the order-in-original sent by Registered Post and which was returned with the postal endorsements absent and intimation delivered should be construed as actual service on the petitioner. If the above observation of the Honourable Supreme Court of India is carefully considered it could be easily seen that for the purpose of fixing the commencing date in reckoning the period contemplated under Clause (d) to the proviso of Section 138 of the Negotiable Instruments Act, the Honourable Supreme Court of India has observed as above, but clarified the said observation with the further observation that of course such reckoning would be without prejudice to the right of the drawer of the cheque to show that he had no know ..... X X X X Extracts X X X X X X X X Extracts X X X X
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