9911796707
TMI Blog1990 (2) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 14-7-1982 passed by the Appellate Collector of Customs, Bombay was received by the appellants on 26-7-1982. The appeal filed by the appellants was received in the Registry of this Tribunal on 2-3-1983. Last date for filing the appeal before the Tribunal was 25-1-1983 i.e. within 6 months from the date of communication of the order. Hence there is a delay of 35 days in filing this appeal. It is explained that this appeal was sent by the appellants through their Authorised Representative under the signature of Shri S. Vishwanathan of M/s. Sthanamoorthy Company, Chartered Accountants, Bombay alongwith Bank draft for Rs. 200/- dated 25-1-1983, despatched vide their covering letter No. 27/1195/82-83 dated 25-1-1983 addressed to the Regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the decision of this Tribunal in the case of Viresh Kumar and Brothers [1987 (27) E.L.T.-699] wherein the delay in postal transmission was considered and condoned. 3. On the other hand Shri Durghiya, learned D.R. for the Department vehemently opposed for condonation of delay on the ground that there is no material evidence to show that appeal was posted on 25-1-1983. Mere withdrawal and prepared demand draft from Bank itself does not amount to despatching the appeal on the very day. He submitted that appeal should be filed accompanied with the condonation application in case of delay and since this application has been filed after lapse of 6 years, this application should be dismissed in limini. He contended that this inordinate and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of this Tribunal. Clause (5) of Section 129-A provides that Tribunal may admit an appeal after the expiry of the period if it is satisfied that there was sufficient cause for not presenting it within the said period. In the present case, the appeal papers were received in the Registry of this Tribunal on 2-3-1983 i.e., beyond the period of prescribed time. Hon ble Supreme Court has taken the view in the case of T.N. Roy (1983-E.L.T.-1296) that the date of preferring the appeal would be the date of actual receipt of the appeal by the Appellate Authority and not the date of posting the envelop. This ratio was followed by this Tribunal in the case of Jhaboolal Kesara Rolling Mills, Mirzapur v. Collector of Central Excise, New Delhi [1986 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion as such is neither a procedural law nor a technical but it is a substantial law of the Statute. There may be difficulty in adducing the vital piece of evidence as argued by the appellant s counsel. But we are not concerned with that aspect as there is no scope for equity under Taxing Statute. Neither there is an intendment nor equity in tax law. Statement, however, trustworthy it cannot be equated with the documentary evidence. Oral evidence is just like ton of mud as against one ounce of gold (documentary evidence). In the absence of material piece of evidence, i.e., postal receipt or acknowledgement or date of posting on the cover sent by the appellants, we are unable to accept the plea of the appellant that appeal was posted on 25-1- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is being filed within six months from the date of receipt of the order by the importer. Therefore, the appeal is in time and in order. 12. In the same letter there is an authorisation by the Chief Executive on 25th January, 1983 in favour of Chartered Accountant and declaration by the Chartered Accountant on 25th January, 1983. On the back side of the authorisation 2 Court fee stamps of Rs. 2/-, 2 Court fee stamps of Rs. 50/- were affixed, on these Court fees stamps, we find the date as 25th January, 1983. This Tribunal while returning the demand draft by their letter dated 19-3-1983 referred to the demand draft as dated 25th January 1983. 13. Therefore, the letter dated 25th January, 1983 indicates that the grounds of appeal were sig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rlying the said provision. As according to the Chartered Accountant, all the formalities were complied with and the papers were sent to the Registrar. When once the papers were entrusted to the Chartered Accountant who is an authorised agent, it is presumed that they were sent, as it is his duty in the ordinary course of business to send them. It is also evident from this letter that it is sent to Nehru Place where the CEGAT was situated immediately after its constitution. The receipt of the letter is by the office of CEGAT in R.K. Puram. 15. The letter dated 25th January, 1983 coupled with affidavit of Vishwanathan the Chartered Accountant and other factors mentioned above, establishes that the appellants are deligent in taking steps for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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