2014 (1) TMI 1676 - AT - Customs

Condonation of delay - Inordinate delay of 221 days - Delay in receipt of order - Held that - When the Department produced a letter along with the delivery slip, from the GPO, Kolkata, the Applicant disputed the said delivery slip by contending that it was neither received for on behalf of the firm nor any one employed in the firm. Consequently, after making necessary investigation, it was established by the Department that the signature mentioned in the delivery slip is one, Mr.Subhas Chandra Ghosh, partner of CHA firm. We find that the plea taken by the Applicant all along during the course of hearing of miscellaneous application, is not bonafide. Thus, we are of the view that since the Applicant has been communicated with the order on 21st May, 2012, which has also evident from the fact that they have filed a Writ Petition before the Hon ble Calcutta High Court, challenging the impugned order along with the main notice, but choose not to file the appeal before this Tribunal along with the appeal thereafter, filed by the main Applicant, the claim that they have not been communicated with the order, therefore, the appeal could not be filed in time, is devoid of merit. We also find that the approach of the Applicant is not bonafide all along and also they could not show sufficient cause warranting condonation of the delay. - Condonation denied.

Summary

Issues:
Delay in filing appeal due to non-receipt of order and communication of order through Speed Post.

Analysis:
The case involved two miscellaneous applications seeking condonation of a 221-day delay in filing an appeal due to the non-receipt of an Order-in-Original. The appellant claimed that they were not served with the order dated 7th May, 2012, until 22nd January, 2013. The appellant argued that the order had not been communicated to them, leading to the delay in filing the appeal. The appellant also challenged the order before the Calcutta High Court through a Writ Petition. The Revenue's Special Counsel contended that the appellant's approach was not bona fide, as investigations revealed that the order had been communicated, albeit to a partner of a related firm. The Revenue argued that the appellant's conduct of disputing the service of the order through Speed Post was not genuine. The Revenue cited Section 129A(3) and the decision of the Supreme Court in a similar case to support their argument that the delay should not be condoned.

The Tribunal noted that the appellant consistently claimed they had not received the order until a later date. However, investigations revealed that the order had been served to a partner of a related firm. The Tribunal found that the appellant's claim of non-communication of the order was not genuine, as evidenced by the filing of a Writ Petition before the High Court challenging the same order. The Tribunal concluded that the appellant's approach was not bona fide throughout the proceedings and failed to demonstrate sufficient cause for the delay. Citing the Supreme Court decision, the Tribunal dismissed the application seeking condonation of the 221-day delay and subsequently dismissed the appeal and stay petition.