TMI Blog1999 (3) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... AD SAMADHAN SCHEME, 1998 (hereinafter referred to as the 'Scheme'). The petitioner further prayed to direct the first respondent to dispose of the application under the provisions of the scheme. 2.The appeal preferred against the order passed by the adjudicating authority was dismissed as time barred on 9-12-1998, intimation of which was received by petitioner on 18-2-1999. Later on by amendment, the petitioner prayed to quash and set aside the order dated 9th December, 1998 - Annexure-G passed by the second respondent dismissing the appeal as time barred. 3.From the petition, it appears that a show cause notice under the provisions of the Customs Act, 1962 (hereinafter referred to as the 'Act') was served upon the petitioner on 6-1-199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the dismissal of the appeal is concerned, which is produced on record indicates that there was gap of 34 days between the date of the order-in-original and the date of communication. It appears that the petitioner was directed by an office order dated 8-10-1998 to produce a proof of the receipt of the order in original within 10 days. However, as no such proof was produced, the Commissioner (Appeals), arrived at a conclusion vide Annexure-'G' that the appeal is required to be dismissed being time barred under Section 128(1) of the Customs Act, 1962 as there was delay of 21 days in filing the appeal. It is under these circumstances, contended before us that the order passed by the Commissioner of Customs Annexure-E on 21-12-1998 is cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 3-11-1998. Simultaneously, declaration has been filed on the same day under the Scheme. However, appeal has been rejected subsequently as time barred by an order dated 9-12-1998 by the Commissioner (Appeals) vide order Annexure-G. The order rejecting the appeal as time barred has been despatched on 9-2-1999 which has been received by the petitioner on 18-2-1999. It is difficult to understand if appeal was rejected on 9-12-1998 as to why for such a long period, the order passed by the Commissioner (Appeals) remained unattended. In the instant case, what is required to be considered is that when the declaration was filed, the appeal was pending or not? If the appeal was rejected on 9-12-1998, it cannot be said that the declaration dated 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not sufficient but there should be a proof of condonation of delay for late filing. If the delay is not condoned, according to Mr. Shah, the application has been rightly rejected. He submitted that in the instant case, the delay application has not been preferred and therefore, the appeal has been rightly rejected under the Scheme. At the cost of the repetition at this juncture, we will point out that the appeal was filed on 17-9-1998 and by order dated 9-12-1998 it was rejected. The communication of which was forwarded by letter dated 9-2-1999 which was received by the petitioner on 18-2-1999. If the appeal is preferred and is numbered, then, in our opinion, it cannot be said that the appeal was not pending since it was neither rejected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question about the strike during the pendency of an appeal would be an illegal strike under Sections 24 and 25 of the Industrial Disputes (Appellate Tribunal) Act, 1950, even though the appeal is not a valid or competent one. Section 24 of the aforesaid Act prohibits the workman who is employed in any industrial establishment, from going on strike during the pendency of an appeal before the Appellate Tribunal and Section 25 renders a strike and lock out as illegal if it is declared, commenced or continued in contravention of the provisions of Section 24. It was contended that Section 24 contemplates the pendency of valid and competent appeal, however as no valid and competent appeal under the law was pending, it was contended that appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted without the fact of delay in presentation having been noticed, it is always open to the department to raise objection at the time of hearing of the appeal. The Honourable Apex Court in case of Mela Ram Sons v. Commissioner of Income Tax, Punjab, A.I.R. 1956 (S.C.) 367 observed that the Court should be slow to adopt a construction which deprives parties of valuable rights. The Apex Court in case of S.B. Jain, I.T.O. v. Mahendra, (1972) 83 ITR 107 (S.C.) had pointed out that "The proceedings before the competent Authority cannot be said to be not pending merely because no relief can be granted in those Proceedings because of the bar of limitation." Mr. Joshi submitted that assuming for the sake of argument that the appeal was barre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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