2010 (8) TMI 562 - AT - Customs

Limitation - Condonation of delay - Appeal is delayed by 30 days - For condonation of this delay, the appellant has submitted that he was mentally disturbed and was in continuous stress and hence unable to pursue the appellate remedy - According to the appellant, the order was received by him only on 22-8-2008 - This claim is contradictory to his own admission that a copy of the order had been received earlier but returned to the department - The Revenue has produced documentary evidence of the order having been personally served on appellant s advocate on 4-4-2007 - Section 153 of the Customs Act, 1962 provides the procedure for service of orders, notices etc. It provides for direct service of an order on the person for whom it is intended, or on his agent The advocate holding vakalat of the appellant before the Commissioner was acting as an agent of the appellant - That the department also served a copy of the order on the appellant by its despatch by registered post, properly addressed and duly pre-paid - No overriding case law has been cited by the learned Counsel in this context to establish to the contra - There is no explanation for the delay of the appeal - Hence, the application is dismissed.

Summary

Issues:
Condonation of delay in filing the appeal, waiver of pre-deposit and stay of recovery.

Analysis:
1. The appellant filed two applications before the Tribunal, one for condonation of delay in filing the appeal and the other for waiver of pre-deposit and stay of recovery. The first application pertained to a delay of 30 days in filing the appeal, with the appellant citing being "mentally disturbed and in continuous stress" as the reason for the delay. The appellant claimed that the impugned order was communicated to him on 22-8-2008, although documents produced by the Revenue indicated earlier service of the order on the appellant's advocate on 4-4-2007. Medical records submitted by the appellant did not substantiate the claimed reasons for the delay.

2. The Counsel for the appellant argued that the delay should be reckoned from the date of communication of the impugned order, which he contended was 22-8-2008. He referenced case law to support his argument for a liberal view in the circumstances of the case. However, the SDR contended that the Tribunal's precedent in Margra Industries was contrary to the High Court's ruling in P. Bhoormal Tirupati case, and hence should not be followed.

3. The Tribunal considered the submissions and found the appellant's reason for delay unsubstantiated. The prime issue revolved around the date of communication of the impugned order. The appellant's claim of receiving the order on 22-8-2008 contradicted evidence of earlier service on his advocate. The Tribunal held that the order was duly served on the appellant on 4-4-2007 through his Counsel, as per the provisions of Section 153 of the Customs Act.

4. Even if there was no direct service, the Tribunal found in favor of the department regarding service by registered post on 5-4-2007. Citing the High Court's ruling in P. Bhoormal Tirupati case, the Tribunal held that service by registered post was deemed proper unless disproved. The Tribunal noted the lack of explanation for the delay in the appeal prior to 22-8-2008, leading to the dismissal of the application and the appeal as time-barred.

5. In conclusion, the Tribunal dismissed the application for condonation of delay, resulting in the dismissal of the appeal and the stay application. The judgment was dictated and pronounced in open court.