1990 (7) TMI 261 - AT - Customs

Summary

Issues Involved:
1. Condonation of delay in filing the appeal.
2. Determination of the date of receipt of the impugned order.
3. Examination of the reasons for the delay.
4. Application of legal principles regarding condonation of delay.

Detailed Analysis:

1. Condonation of Delay in Filing the Appeal
The primary issue was whether the delay of 8 days in filing the appeal should be condoned. The appellant argued that the delay was due to personal circumstances involving his mother and son's health issues. The Tribunal noted that the appellant was required to explain each day's delay beyond the limitation period and demonstrate due diligence.

2. Determination of the Date of Receipt of the Impugned Order
The appellant claimed the impugned order was received by his counsel on 30th November 1989 and communicated to him on 5th December 1989. The Tribunal concluded that the date of receipt by the counsel (30th November 1989) should be considered the date of communication of the order. This led to a delay of 8 days in filing the appeal, as the appeal was received in the Registry on 9th March 1990.

3. Examination of the Reasons for the Delay
The appellant cited various personal reasons for the delay, including his mother's heart attack in December 1989 and his son's illness in January 1990. He also mentioned confusion regarding the need to file a separate appeal under the Gold (Control) Act, as he had already filed an appeal under the Customs Act. The Tribunal found these reasons insufficient, noting that the appellant had time even after January to file the appeal and should have been diligent in pursuing the appellate remedy.

4. Application of Legal Principles Regarding Condonation of Delay
The Tribunal referred to the Supreme Court's decision in Ramlal v. Rewa Coalfields, which emphasized that bona fides and due diligence are crucial for condonation of delay. The Tribunal observed that the appellant did not demonstrate sufficient cause for the delay and was not diligent in pursuing the appellate remedy. Consequently, the Tribunal did not condone the delay and dismissed the appeal and stay application.

Separate Judgment by Member (Judicial)
Member (Judicial) disagreed with the view of Member (Technical) and recorded a separate order. He argued that the delay was effectively only 4 days and should be condoned considering the circumstances. He cited Supreme Court rulings, including Harsha Tractors Ltd. v. Collector of Customs and Collector, Land Acquisition, Anantnag v. Mst. Katiji, emphasizing a liberal approach towards condonation of delay to ensure substantial justice.

Majority Decision
The President, agreeing with Member (Judicial), highlighted the evolving judicial approach towards greater liberality in condonation of delay. He noted that the appellant's confusion regarding the need for a separate appeal and the prompt action taken after receiving the counsel's letter on 7th March 1990 justified condonation of the delay. The majority decision was to condone the delay and direct the Registry to list the Stay Petition for hearing.

Final Order
In view of the majority decision, the delay in the presentation of the appeal before the Tribunal was condoned, and the Registry was directed to list the Stay Petition for hearing by the Bench.