TMI Blog2000 (6) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... orted a fully automatic labelling machine from West Germany. In respect of the said automatic labelling machine, the petitioner had claimed classification of the machinery imported under Customs Tariff sub-heading 8422.30 and also claimed exemption under the above Tariff heading read with Customs Exemption Notification No. 125/86 dated 17-2-1986 as amended. However, the second respondent rejected the claim of the petitioner. Aggrieved by the order of the second respondent, the petitioner filed W.P. No. 17377 of 91 before this Court for the limited purpose of securing the release of the labelling machine. This Court by order dated 20-1-1992 following the earlier orders passed in similar matters, directed that the labelling machine should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal to the first respondent by certificate of posting on 2-5-1992 before the expiry of six months period as provided under the Statute, the appeal filed was well within time. On the other hand, Mr. S. Udayakumar, learned Additional Central Government Standing Counsel, by drawing my attention to Section 128 of the Customs Act, 1962, would contend that inasmuch as the appeal was presented after the expiry of six months time, the first respondent is justified in passing the impugned order, accordingly prayed for dismissal of the writ petition. 5.The only point for consideration is whether the appeal sent to the first respondent by certificate of posting on 2-5-1992 and received in the office of the first respondent on 25-5-1992 is within t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lower in rank than a Commissioner of Customs may appeal to the Commissioner (Appeals) within three months from the date of the communication to him of such decision or order : Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months. Every appeal(2) under this section shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf." It is clear from sub-section (1) of Section 128 that the limitation prescribed for filing appeal against the decision or order passed by an officer of Customs to the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant may, in case of urgency or for other sufficient reason, present or send the appeal to the concerned officer of the Bench nearest to him, even though the matter relates to a different Bench; and in such a case the officer receiving the appeal shall, as soon as may be, forward it to the concerned officer of the appropriate Bench. A memorandum of(2) appeal sent by post under sub-rule (1) shall be deemed to have been presented to the concerned officer on the date on which it is received in the office of the concerned officer." It is clear from the said Rule that the appeal can be filed before the appellate authority by presenting the appeal by the appellant in person or by the agent or by sending registered post addressed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing so, the learned Judge directed that the appeal should be disposed of on merits after giving an opportunity of being heard to the petitioner even though received late in their office. As stated earlier, the said decision is not applicable to our case, since in our case, the appeal papers were sent to the correct person. 8.The next decision relied on by Mr. Mohan Parasaran is in the case of Simplex Electronics v. Collector of Customs [1989 (42) E.L.T. 451 (Tribunal)]. First of all, it is a decision of the Tribunal and the same is not binding on me. In that case, the appeal was despatched by the appellant before the expiry of limitation, but received in the office of the Collector (Appeals) beyond the period of limitation. The Tribunal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Committee, Sabarmathi Hostel, K.M.C. etc., (1955-1-L.W. 351) . In the first case, namely, 1955-1-L.W. 348, the Division Bench considered the aspect of posting applications to the post office within the prescribed time. In paragraph 5, Their Lordships have held as follows :- "5. However, learned counsel appearing for the appellant submits that when the Selection Committee has accepted Post Office as an agency through which applications could be sent, the moment the application was handed over to the Post Office, prior to the last date fixed, it must be deemed to have been submitted to the Selection Committee on the date it is handed over to the Post Office. As the petitioner has handed over the cover to the Post Office to be sent thro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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