1992 (12) TMI 163 - AT - Customs

Summary

Issues Involved:
1. Application for condonation of delay in filing the appeal.
2. Service of the impugned order on the applicant.
3. Knowledge and receipt of the impugned order by the applicant.
4. Presumption under Section 114 of the Indian Evidence Act.

Detailed Analysis:

1. Application for Condonation of Delay:
The primary issue is the applicant's request for condonation of delay in filing the appeal. The applicant contended that she was unaware of the impugned order until recently, as it was communicated to her by her daughter. The applicant claimed she was an illiterate lady and had no knowledge of the order until it was handed over to her by her daughter.

2. Service of the Impugned Order:
The applicant argued that the impugned order was never served on her. The department countered this by providing evidence from the postal department, indicating that the order was posted to the applicant on 25-4-1990 and was not returned, thus presumed served. Additionally, a copy was sent to the applicant's consultant, Mr. Alimchandani, who had requested it on 23-7-1990 and received it on 7-8-1990.

3. Knowledge and Receipt of the Impugned Order:
The applicant's affidavit stated that she was not informed about the order by her consultant, Mr. Alimchandani, and that she did not receive the order at her address. The department's evidence contradicted this, showing that the order was sent and received. The Tribunal found the applicant's claims unreliable, noting inconsistencies and the lack of an affidavit from the consultant to support her allegations.

4. Presumption under Section 114 of the Indian Evidence Act:
The Tribunal relied on the presumption under Section 114 of the Indian Evidence Act, which states that a letter properly addressed, stamped, and posted is presumed to have been delivered. The applicant's bare denial of receipt was insufficient to rebut this presumption. The Tribunal cited the Supreme Court's decision in Anil Kumar v. Chandra Verma, emphasizing that unreliable testimony from the applicant could not rebut the presumption of service.

Conclusion:
The Tribunal dismissed the application for condonation of delay, finding that the applicant had not provided sufficient evidence to rebut the presumption of service of the impugned order. The appeal and the stay application were consequently dismissed. The Tribunal emphasized the need for parties to come with clean hands and provide reliable evidence, which the applicant failed to do in this case.